study for the european commission on ‘possible ways to
TRANSCRIPT
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Study for the European Commission on ‘Possible Ways to Address Digital Sequence
Information – Legal and Policy Aspects’
Consultancy project conducted for the European Commission: ENV.F.3/SER/2019/6175145
Prof Elisa Morgera, Dr Stephanie Switzer, Miranda Geelhoed, LLM
December 2019 (revised: March 2020; July 2020; August 2020)
Strathclyde Centre for Environmental
Law and Governance (SCELG)
Lord Hope Building
141 St James Road
Glasgow
G4 0LT
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Contents
List of Acronyms ................................................................................................................... 4
Introduction ............................................................................................................................ 6
a) Methodology and scope ........................................................................................... 7
b) Core assumptions and summary of findings ............................................................ 8
Option 1: DSI is not covered by the CBD or the Nagoya Protocol ..................................... 12
a) The conceptual underpinnings of the debate over whether DSI comes within the
scope of the CBD and Nagoya Protocol .......................................................................... 12
b) A legal and policy basis analysis of the inclusion of DSI with the CBD and Nagoya
Protocol ............................................................................................................................ 13
Option 2: DSI is covered by the CBD and the Nagoya Protocol: benefits from use of DSI
are to be included in MAT and no additional measures are taken ....................................... 15
Option 3: The current system is complemented by a new track-and-trace system .............. 16
a) Background ............................................................................................................ 16
b) Retracing of information ....................................................................................... 16
c) Blockchain ............................................................................................................. 19
d) Improved track-and-trace as part of a hybrid approach ......................................... 21
Option 4: A sui generis system inspired by copyright ......................................................... 23
a) Copyright in broad terms ....................................................................................... 23
b) DSI and copyright – understanding the context .................................................... 24
c) Reimagining copyright protection? ....................................................................... 25
d) The benefit of a sui generis system inspired by copyright: the example of annotation?
.......................................................................................................................................... 26
f) A broader system encompassing the range of actors along the DSI value chain? .... 28
g) Operationalisation .................................................................................................. 30
h) States’ rights under a domaine public payant model ............................................. 31
Option 5: A multilateral fund ............................................................................................... 35
a) Funding – accrual of benefits ................................................................................ 36
b) Funding – disbursement of benefits....................................................................... 42
c) Governance, accountability and decision making ................................................. 46
d) Sites of governance ................................................................................................ 49
Option 6: A multilateral platform for benefit-sharing ......................................................... 53
a) Beyond monetary and non-monetary benefits ....................................................... 53
b) Taking inspiration from the governance of the GLIS: tackling the issue ‘from the
side’ 54
c) Facilitating and brokering scientific cooperation and capacity-building .............. 56
d) In conclusion: a multilateral multifunctional platform on DSI ............................. 57
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Option 7: Hybrid approach .................................................................................................. 59
a) An overview .......................................................................................................... 59
b) Opearationalizing the digital domaine public payant as part of the platform ...... 60
c) The centrality of the CBD ..................................................................................... 64
Conclusion ........................................................................................................................... 67
Annex Table: Overview of Six Existing Multilateral or Global Funding Mechanisms ...... 69
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List of Acronyms
ABS access and benefit-sharing
AHTEG Ad Hoc Technical Expert Group
AN Accession Number
BBNJ biological diversity of areas beyond national jurisdiction
BSF Benefit-Sharing Fund
CBD Convention on Biological Diversity
COP Conference of the Parties
COP-MOP Conference of the Parties serving as the Meetings of the Parties
DNA deoxyribonucleic acid
DOI Digital Object Identifiers
DSI digital sequence information
EU European Union
FAO Food and Agriculture Organization of the United Nations
GAFSP Global Agriculture and Food Security Program
Gavi Global Alliance for Vaccines and Immunisation
GCF Green Climate Fund
GDPR General Data Protection Regulation
GEF The Global Environment Facility
GFATM The Global Fund to Fight AIDS, Tuberculosis and Malaria
GFBio The Global Fund for Biodiversity
GISAID Global Initiative on Sharing All Influenza Data
GISRS Global Influenza Surveillance and Response System
GLIS Global Information System
GUID Global Unique Identifier
IAF International Fund for Agricultural Development
IFC International Finance Corporation
IFFIm International Finance Facility for Immunisations
INSDC International Nucleotide Sequence Data Collaboration
IP intellectual property
IPBES Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem
Services
IRCC internationally-recognised certificate of compliance
ITPGRFA International Treaty on Plant Genetic Resources for Food and Agriculture
MAT mutually agreed terms
MLS multilateral system
NDA National Designated Authorities
NSD Nucleoside Sequence Data
PGRFA plant genetic resources for food and agriculture
PIC prior informed consent
PIP Framework Pandemic Influenza Preparedness Framework
RNA ribonucleic acid
SDGs Sustainable Development Goals
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SMTA Standard material transfer agreement
SOI Sustainable Ocean Initiative
TK Traditional knowledge
TRIPS The Agreement on Trade-Related Aspects of Intellectual Property Rights
TRP Technical Review Panel
UK United Kingdom
UN United Nations
USA United States of America
WDCM World Data Centre for Microorganisms
WFCC World Federation for Culture Collections
WHO World Health Organization
WTO World Trade Organization
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Introduction
In 2016, the Conference of the Parties to the Convention on Biological Diversity (‘CBD’)1
recognised for the first time the relevance of, and potential issues surrounding, digital sequence
information on genetic resources (‘DSI’) for the achievement of the CBD’s three objectives:2
namely, the conservation of biological diversity, the sustainable use of its components and,
notably, the fair and equitable sharing of the benefits arising out of the utilization of genetic
resources.3 In light of the need for a coordinated and non-duplicative approach, the issue was
simultaneously raised by the Conference of the Parties serving as the Meetings of the Parties
(‘COP-MOP’) to the Nagoya Protocol on Access and Benefit-Sharing (‘the Nagoya
Protocol’).4 An Ad Hoc Technical Expert Group (AHTEG) was established and multiple
studies have been undertaken or are currently being conducted to shed light on the highly
technical and complex issue of how DSI relates to the scope and workings of the international
regime on access and benefit-sharing (‘ABS).5 DSI has been debated during the 2018 COP and
COP-MOP,6 and it is expected that DSI will remain a critical topic at the CBD COP15 as well
as in other international fora. Specifically, DSI is also being discussed under the Pandemic
Influenza Preparedness Framework (PIP Framework) of the World Health Organisation
(WHO)7, the International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA)8 as well as current UN negotiations for a legally binding instrument on marine
biodiversity of areas beyond national jurisdiction (BBNJ).9
Difficulties in achieving progress on DSI under international regimes on biodiversity and
access and benefit-sharing, however, do not only stem from the technical complexity of the
subject, but also from the increasingly politicized nature of the debate and the resulting
polarised positions among CBD Parties. The current negotiating impasse is expected to have
an impact on the negotiations for a post-2020 Global Biodiversity Framework and may start to
1 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS
79 (‘CBD’). 2 CBD COP, 'Digital Sequence Information on Genetic Resources' (2016) CBD/COP/DEC/XIII/16, Preamble 1. 3 Article 1 CBD. 4 Conference of the Parties to the CBD Serving as the Meetings of the Parties to the Nagoya Protocol ('COP-
MOP'), 'Digital Sequence Information on Genetic Resources ' (2016) CBD/NP/MOP/DEC/2/14. 5 See, for example, Convention on Biological Diversity (by S Laird and R Wynberg), 'A Fact Finding and Scoping
Study on Digital Sequence Information on Genetic Resources in the Context of the Convention on Biological
Diversity and Nagoya Protocol' (2018) CBD/DSI/AHTEG/2018/1/3 (‘Laird and Wynberg 2018’) and ‘2019-2020
Inter-Sessional Period. Studies on Digital Sequence Information on Genetic Resources’
https://www.cbd.int/abs/dsi-gr/2019-2020/studies.shtml, accessed December 2019. 6 CBD COP, 'Digital Sequence Information on Genetic Resources' (2018) CBD/COP/DEC/14/20 and COP-MOP
to the Nagoya Protocol, 'Digital Sequence Information on Genetic Resources' (2018) CBD/NP/MOP/DEC/3/12.
Please note that CBD COP15 has been postponed due to the continuing impacts of COVID-19;
https://www.cbd.int/doc/notifications/2020/ntf-2020-032-sbstta-sbi-en.pdf. 7 World Health Organisation, 'Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses
and Access to Vaccines and Other Benefits' (2011) A64/VR/10 (‘PIP Framework); see specifically PIP Advisory
Group's work on handling Genetic Sequence Data under the PIP Framework, available at
https://www.who.int/influenza/pip/advisory_group/gsd/en/?, accessed December 2019.
8 Summary of the Eighth Session of the Governing Body of the International Treaty on Plant Genetic Resources
for Food and Agriculture: 11-16 November 2019, Rome, Italy, Earth Negotiations Bulletin (09) 740. 9 3rd Session of the Intergovernmental Conference (IGC) on the Conservation and Sustainable Use of Marine
Biodiversity of Areas Beyond National Jurisdiction: 19-30 August 2019, UN Headquarters, New York, IISD
Reporting Services, available at https://enb.iisd.org/oceans/bbnj/igc3/, accessed December 2019.
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undermine other international cooperation efforts on biodiversity more broadly, both under the
CBD and in other fora. This study examines if and how a sound international law solution can
be found to bridge and balance developed and developing countries’ demands for equity as
well as the need to support scientific research and scientific cooperation in the context of the
holistic realization of the three CBD objectives. This study will also seek to discern what non-
legal solutions might exist to the DSI issue. This study therefore assesses different legal and
non-legal options and identifies creative solutions to the issue of DSI, on the basis of three
starting points that are both principled and pragmatic:
Finding a legal solution that responds to the different needs of CBD Parties and
stakeholders around DSI can contribute to the broader effectiveness of the international
biodiversity regime;
Fostering learning across different regimes can also contribute to the effectiveness of
the international biodiversity regime: even if other international regimes are not
applicable, they can provide tested solutions and lessons learnt that can be adapted to
the context of the CBD; and
Moving beyond the false dichotomy of monetary and non-monetary benefits that often
characterises debates on ABS and DSI to ensure a functional approach and indeed, a
more expansive view of what constitutes benefits.
The results of this study aim to assist the European Commission in discussions with Member
States on possible ways forward.
a) Methodology and scope
This study will analyse and assess seven different options for addressing the issue of DSI: 1)
DSI is not covered by the CBD or the Nagoya Protocol; 2) DSI is covered by the CBD and the
Nagoya Protocol and no additional measures need be taken; 3) existing CBD/Nagoya Protocol
provisions are complemented by the implementation of a new track-and-trace system; 4) a
copyright-inspired sui generis system is put in place; 5) a multilateral DSI fund is put in place;
6) a broader, principled approach to benefit-sharing is taken, or; 7) a hybrid approach is taken.
Options 1 to 5 were partially pre-identified by the European Commission under the terms of
reference. Options 6 to 7 were identified on the basis of subsequent research. The analysis of
various options is based on a desk-based review of academic and grey literature pertaining to
DSI across different disciplines (such as law, natural sciences and political sciences).
The analyses take into account the wider possible effects of each option upon other policy areas
as well as whether any changes would lead to substantive sharing of benefits over time. In
terms of the scope of this study, while as noted above DSI is also a topic of debate under other
treaties, e.g. the International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) and the Pandemic Influenza Preparedness Framework (PIP Framework), these
areas are only considered for their mutual-learning value. The impacts of the different options
to address DSI on these international instruments are not the subject of this study. In the
conclusions this study will, however, consider the potential utility of the recommended options
to address DSI for the current UN negotiations on a legally binding instrument on marine
biodiversity of areas beyond national jurisdiction (BBNJ). It is finally to be noted that this study
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will not address the ongoing question of how to effectively regulate the biosecurity concerns
surrounding synthetic biology.10
The research builds upon earlier work by Professor Elisa Morgera on fair and equitable benefit-
sharing conducted within the five-year BENELEX project (2013-2019).11 The study also
integrates insights on bio-prospecting and international scientific cooperation arising from the
development and implementation of the One Ocean Hub: an inter-disciplinary collaboration on
integrated ocean research and governance between UK and Global South research
institutions.12 In addition to desk-based research, the analyses have been informed by
confidential discussions with leading experts on DSI, notably with regard to the international
legal and political landscape relevant to DSI, including intellectual property law (Dr Shakeel
Bhatti in his personal/academic capacity), and the views of the scientific community on DSI
(Dr Rachel Wynberg, University of Cape Town, and Sarah Laird). These three experts have
indicated that this study has come to novel and helpful conclusions that could help bridge the
current divide in international negotiations and lead to a more constructive engagement with
different various stakeholders involved in bio-based innovation. We are extremely grateful for
the insights and assistance provided by these experts in helping to develop our thinking in
relation to this study.
b) Core assumptions and summary of findings
Our core assumption within this study is that in line with the international law principles of
good faith and effectiveness, DSI is within the scope of the CBD and the Nagoya Protocol but
cannot be adequately addressed through a bilateral approach, which is largely considered to
characterize ABS under the CBD and Nagoya Protocol. This approach has, in effect, led to a
series of legal and practical difficulties in implementation (that make addressing DSI quite
complicated under the CBD). It has also focused attention on a transactional approach/ logic
of exchange in the context of negotiating mutually agreed terms (MATs) that has been to the
detriment of the identification of opportunities for increased cooperation for the realization of
all the objectives of the CBD and their global benefits for human well-being as well as the
realization of the Sustainable Development Goals.
The problem underlying the bilateral approach inherent in the Nagoya Protocol in the DSI
context is the conceptualisation of DSI as ‘natural information.’ The fact that genetic resources,
10 For discussion, see, for example, A Rai and J Boyle, 'Synthetic Biology: Caught between Property Rights, the
Public Domain and the Commons' (2007) 5(3) PLoS Biology 0389; M Redford, ‘Genetic frontiers for
conservation : an assessment of synthetic biology and biodiversity conservation : technical assessment’, (IUCN,
2019) available at https://portals.iucn.org/library/node/48408, accessed December 2019; Secretariat of the
Convention on Biological Diversity (2019 Synthetic Biology, Montreal Technical Series No. 82; P Oldham, S
Hall and G Burton, ‘Synthetic Biology: Mapping the Scientific Landscape’ (2012) 7(4) PLoS ONE 1. 11 For more information, visit ‘The Benelex Project. Benefit-Sharing for an Equitable Transition to the Green
Economy’ at https://www.strath.ac.uk/research/strathclydecentreenvironmentallawgovernance/benelex/,
accessed October 2019. 12 For more information, visit ‘the One Ocean Hub’
https://www.strath.ac.uk/research/strathclydecentreenvironmentallawgovernance/oneoceanhub/, accessed
December 2019.
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understood as natural information,13 are oftentimes not unique to a particular country,
alongside the range of publicly accessible databases (see discussion option 3 below) and ex situ
specimens, means that bilateral ABS arrangements, at least in respect of DSI, may become
increasingly difficult to operationalise.14 Conserved sequences, which “are similar or identical
sequences in DNA, RNA and proteins or polysaccharides occurring across species, or within
different molecules produced by the same organism”15 are also extremely common.16 This has
also led some commentators to argue that “the notions of sovereignty and countries of origin
… require reconsideration.”17
In addition, DSI poses significant challenges to the bilateral approach to ABS because of the
valuation of monetary benefits in respect of the contribution of DSI to commercial products,
and the resulting nature and extent of such monetary benefits. It has been underscored that “the
value of an individual sequence from a species may be very difficult to quantify”,18 because its
value lies in its potential to be screened with other sequences to find connections between traits
and functions.19 Similarly, one author remarked: “The modalities of genomic data (DSI) use
make traceability irrelevant: the value lies in the amounts of data analysed, rarely in a single
accession.”20 The long “cognitive and material distance” between a resource and a final product
is a challenge for valuation,21 if only a very small percentage of a particular sequence is used
or when the product of biotechnology has seen many transformations.22 Questions have
therefore arisen as to when benefit-sharing obligations cease to exist,23 and where such
obligations arise along a complex chain of providers and users. Further, and as set out above,
conserved or homologous sequences, as well as the spread of particular genes across
jurisdictions, present difficulties for valuation of monetary benefits from DSI.24
As set out above, genetic resources are often shared by countries with the spectre of
‘jurisdiction shopping’ therefore arising, resulting in oftentimes very low monetary benefits.25
This raises important issues of equity and has led to the question being asked as to whether the
current bilateral ABS approach embodied by the Nagoya Protocol does in fact support fairness
13 J H Vogel et al, 'Bounded Openness as the Modality for the Global Multilateral Benefit-Sharing Mechanism of
the Nagoya Protocol' in Charles R. McManis and Burton Ong (eds), Routledge Handbook of Biodiversity and the
Law (Routledge, 2017) 11. See also Laird and Wynberg 2018 (supra, n 5), 50 to 51. 14 Ibid. 15 Laird and Wynberg 2018 (supra, n 5), 50. 16 Ibid, 50 to 51. 17 M Ruiz Muller, 'Thinking Outside the Box Innovative Options for an Operational Regime on Access and Benefit
Sharing' (2010) ICTSD Issue Paper No. 1, 11 18 E W Welch et al, Potential Implications of New Synthetic Biology and Genomic Research Trajectories on the
International Treaty for Plant Genetic Resources for Food and Agriculture (Secretariat of the International Treaty
on PGRFA, 2017), 37. 19 Ibid. 20 S Aubry, ‘The Future of Digital Sequence Information for Plant Genetic Resources for Food and Agriculture’
(2019) 10 Front Plant Sci 1, 4. 21 Dutfield in D Scott and D Berry, Genetic Resources in the Age of the Nagoya Protocol and Gene/Genome
Synthesis (University of Edinburgh, 2016), 23. 22 Laird and Wynberg 2018 (supra, n 5), 51. 23 L N Slobodian et al, The Traceability of MGRs and Genomic Tech/Synthetic Biology (PharmaSea Milestones,
2017). 24 Laird and Wynberg 2018 (supra, n 5), 51. 25 Ruiz Muller 2010 (supra, n 17), 11. See also M Ruiz Muller, ‘Access to Genetic Resources and Benefit Sharing
25 Years on’ (2018) ICTSD Issue Paper No. 44, 11.
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and equity in benefit sharing and support overall conservation and sustainable use.26 To the
extent that better tracking of DSI is possible to provide for monetary benefit-sharing - and this
in itself is perhaps questionable (see options 3 below and 4 below) – the ability to track would
not address issues of fairness and moreover equity associated with the current bilateral ABS
system under the Nagoya Protocol.27
Accordingly, while in our view DSI is within the scope of the Nagoya Protocol and CBD
(option 1 below), we contend that the prevailing bilateral approach under the Protocol is neither
desirable nor practicable to deal with the issue of DSI. Accordingly, we reject the notion that
benefits from the use of DSI need only be dealt with by via MAT and no additional measures
need be taken to deal with the peculiarities of DSI, because this approach appears out of sync
with current scientific practices (option 2 below). We further explore whether additional
measures, particularly via the introduction of new mechanisms to track and trace DSI would
facilitate the operation of the bilateral ABS system under the Nagoya Protocol but as noted
above, do not find this option to be particularly feasible. This is due to difficulties arising under
the bilateral system regarding the monitoring of use and the intractability of determining the
value and nature of benefit-sharing obligations (option 3 below). We further explore whether a
sui generis system of copyright-like protection (option 4 below) for DSI may offer a solution
but find that the complexity and likely cost of such a system may very well outweigh its
potential benefits.
Based upon our analysis in options 1 to 4, we argue that the need for legal certainty, and the
difficulties of achieving such certainty on a bilateral basis, weighs in favour of a multilateral
solution. We therefore explore in option 5 potential options for a multilateral approach to
monetary benefit-sharing in respect of DSI. We discuss a menu of potential options for the
accrual of monetary benefits under such a fund as well as potential sites for its governance. In
particular, we identify three potential sites for the operation of such a fund: (1) a multilateral
approach based on Article 10 of the Nagoya Protocol, (2) a global fund for biodiversity under
the CBD (and therefore centred under the UN system) and, (3) a global fund for biodiversity
outside of the existing ABS system. Our favoured approach is for a fund under the CBD, since
it is its Treaty objectives which would underpin such a fund. We note, however, that a fund in
itself would not necessarily adequately address the equity issues and foster the needed
cooperation to harness DSI for the realization of the three objectives of the CBD. We thus
explore in option 6 below whether more principled approaches are needed to ensure that
available resources are targeted to ensure fairness and equity. In essence, while a multilateral
fund for the sharing of benefits is very much needed to make a system to address DSI viable,
this should be functional to supporting a multilateral platform for dialogue, learning, oversight
and priority setting, on the best ways to achieve fairness and equity in benefit-sharing from
DSI. Such an approach would ensure that the system would respond to the needs of expected
beneficiaries and allow the international community to understand and respond to the different
communities involved, including by addressing the needs of scientific researchers.
26 See generally Ruiz Muller 2018, ibid, 27 See generally ibid, but see particularly 11.
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In option 7 (a hybrid approach), we combine the multilateral platform for dialogue, learning,
oversight and priority-setting for DSI envisaged in option 6 below with the multilateral fund
for distribution of benefits set out in option 5 below. We propose various mechanisms to
support the financial viability of such a fund, including formulation of a digital domaine public
payant which would be based on a copyright-like approach and see DSI regulated as a semi-
commons under which a fee could either be paid for access to or use of DSI, to support the
objectives of the CBD. Databases could form a natural point of entry for the operation of the
digital domaine public payant. More significantly, the multilateral platform for dialogue,
learning, oversight and priority setting would seek to work collaboratively with all relevant
stakeholders – both in the Global North and the Global South – to create opportunities for
consensus building on DSI. It could also provide a clear response to the latest alarming data on
the implications of the global biodiversity crisis for the realization of the SDGs and the
protection of fundamental human rights. We return in this section to the opportunities to take
a multilateral approach under the CBD and the Nagoya Protocol, underscoring the advantages
of placing the hybrid approach under the Convention. The hybrid approach outlined in
option 7 is very much our preferred approach to resolving the DSI issue.
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Option 1: DSI is not covered by the CBD or the Nagoya Protocol
In this option, we explore the contention that DSI does not come within the scope of the
CBD or the Nagoya Protocol. After setting out the background to such arguments, we contend
that the application of the general principles of international law of effectiveness and good
faith, combined with a desire for legal certainty, indicates that this is not a recommended
option. We contend that considering DSI within the scope of the CBD and the Nagoya Protocol
is likely to produce positive externalities for law and policy and allow for a more structured
approach to the issue across different sectors and regimes.
a) The conceptual underpinnings of the debate over whether DSI comes within the
scope of the CBD and Nagoya Protocol
The topic of DSI poses conceptual questions for the international ABS regime, with the status
of DSI under the CBD and the Nagoya Protocol having been discussed extensively but without
Parties being able to find agreement. Firstly, the terminology ‘DSI’, which was introduced by
the CBD,28 is not uncontentious as the scientific community and other international processes
use related terms, such as ‘resources in silico’ and ‘(genetic) sequence information/data’ which
have been held to more accurately and comprehensively represent the subject at hand.29
Secondly, Parties’ views and those from organisations who have provided submissions to
inform the process diverge with regard to the subject-matter scope of the CBD and the Nagoya
Protocol in relation to DSI, notably in light of the interpretation of the terms ‘utilization of
genetic resources’.30 Arguments against inclusion focus on the dematerialised state of DSI and
presume that the definitions under the CBD only apply to physical resources.31 Contrarily,
arguments in favour of inclusion put forward that the terms under the CBD should include both
tangible and intangible components, “i.e. the physical material as well as the actual or potential
value it contains in the form of information”.32 The invitation for submission of views for the
2019-2020 called for further terminological clarification,33 although some Parties have
remarked that such further technical discussions are unlikely to break the current impasse.34 In
the meantime, the CBD AHTEG group met in March 2020 to consider a number of
28 CBD Decision Xiii/16. 29 For a thorough analysis of the challenges surrounding the ‘DSI’ terminology, see Laird and Wynberg 2018
(supra, n 5), Chapter 2. On terminology and the scope, see also M Bagley and A K Rai, The Nagoya Protocol and
Synthetic Biology Research: A Look at the Potential Impacts (Wilson Centre, 2013), 20-21. 30 See, for example, Art. 1 CBD and Art. 1 Nagoya Protocol. See also, Preamble 17 and Article 3(4) an (5)
Regulation (Eu) No 511/2014 of the European Parliament and of the Council of 16 April 2014 on Compliance
Measures for Users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing
of Benefits Arising from Their Utilization in the Union [2014] OJ L 150/59. 31 See notably Ad Hoc Technical Expert Group ('AHTEG') on Digital Sequence Information on Genetic
Resources, 'Synthesis of Views and Information on the Potential Implications of the Use of Digital Sequence
Information on Genetic Resources for the Three Objectives of the Convention and the Objective of the Nagoya
Protocol' (2018) CBD/SBSTTA/22/INF/2, 36. 32 Ibid, 35. 33 ‘Digital Sequence Information on Genetic Resources: Submission of Views and Information and Call for
Expression of Interest to Undertake Studies’ (Secretariat to the CBD, 2019)
https://www.cbd.int/doc/notifications/2019/ntf-2019-012-abs-en.pdf, accessed October 2019 34 See, for example, ‘Submission by the African Group of Negotiators on Biodiversity-Ad Hoc Group on Digital
Sequence Information’ (Secretariat to the CBD, 2019).
13
commissioned peer reviewed studies35, including on the concept and scope of DSI36, and agreed
that while RNA, DNA, proteins, epigenetic modifications, metabolites and other
macromolecules could be considered DSI, other ‘associated information’ such as traditional
knowledge would not be considered DSI.37 It remains to be seen how this will be responded to
by the Parties at CBD COP15.
b) A legal and policy basis analysis of the inclusion of DSI with the CBD and Nagoya
Protocol
While views may diverge on the most persuasive legal interpretation of the scope of the ABS
regime, a solution capable of fostering increased cooperation and multilateral learning should
be favoured under general principles of international law, notably effectiveness and good
faith.38 These principles support interpretations that contribute to ensure full effect of a treaty,
in light of its object and purpose, rather than depriving provisions of impact on the ground.39
In this regard, it seems to be self-evident that the benefits associated with a genetic resource is
often linked to the information held within a genetic resource in addition to the physical traits
of the specific specimen (see core assumptions above). The exclusion of DSI from the scope
of the CBD and the Nagoya Protocol is therefore considered to be contrary to the principles of
effectiveness and good faith.
A question of relevance to DSI and ABS is, moreover, to what degree data and information can
be used to generate benefits without access to the physical resource, which would mean that
requirements that follow from international law could be avoided altogether when DSI is
excluded from its scope. Whereas current scientific practices mostly use sequences to
complement rather than substitute work on physical organisms,40 rapid technological
developments could allow for further detachment in the future.41 Advances in gene synthesis,
for example, are likely to reduce the need for reliance upon physical samples. Any policy
choice should anticipate this potential.
Exclusion of DSI from the scope of the CBD and the Nagoya Protocol is also likely to
“maintain an uncertain position or the perpetuation of disagreements”,42 and enables the
35 See generally https://www.cbd.int/dsi-gr/2019-2020/studies/ 36 W Houssen and others, Digital Sequence Information on Genetic Resources: Concept, Scope and Current Use
(2020) Convention in Biological Diversity. 37 Secretariat to the Convention on Biological Diversity, ‘Report of the Ad Hoc Technical Expert Group on Digital
Sequence Information on Genetic Resources’ (20 March 2020) CBD/DSI/AHTEG/2020/1/7 38 Secretariat to the Convention on Biological Diversity (prepared by E Morgera, S Switzer and E Tsioumani),
'Study into the Criteria to Identify a Specialised Access and Benefit-Sharing Instrument, and a Possible Process
for Its Recognition' (2018) UN Doc CBD/SBI/2/INF/17, 14. 39 M Fitzmaurice, ‘The Law of Treaties’ in Malcolm Nathan Shaw (ed), International Law (Oxford University
Press 2008), 832-838. 40 Laird and Wynberg 2018, (supra, n 5), 32. 41 C Lawson and M Rourke, ‘Open Access DNA, Rna and Amino Acid Sequences: The Consequences and
Solutions for the International Regulation of Access and Benefit Sharing’ (2016) 24 Journal of Law and Medicine
96, 116 refers to one example under the PIP Framework where a vaccine was produced without access to a physical
sample. 42 E Morgera, ‘Fair and Equitable Benefit-Sharing in a New International Instrument on Marine Biodiversity: A
Principled Approach Towards Partnership Building?’ (2018) 5 Maritime Safety and Security Law Journal 48, p
14
continuation of an international legal vacuum on DSI. Contrarily, the principles of
effectiveness and good faith privilege, “better protection or implementation of universal values,
and in addition [ensure] international institutions are involved to monitor or steer the
process.”43 Whereas some members of the scientific community may primarily anticipate
positive impacts from exclusion due to the likelihood of ongoing unrestricted access to DSI,44
it may be that provider-countries will impose stricter restrictions on the generation and
publication of DSI in legislation on access.45 That said, it is to be noted that bulk of Nucleoside
Sequence Data (NSD) deposits to the International Nucleotide Sequence Data Collaboration
(INSDC) are from 4 countries – USA, China, Canada, and Japan, which together account for
more than 50% of country-tagged NSD.46
Exclusion from the scope of the CBD and the Nagoya Protocol can overall be considered a lost
opportunity to maximise the contribution of DSI to the CBD obligations on scientific research
and cooperation that contribute to realizing the CBD’s objectives of conservation and
sustainable use, although these are to be balanced against other public goods. Moreover, it may
lead to inequitable outcomes for biodiversity-rich countries by circumventing the third
objective of the CBD on fair and equitable benefit-sharing, as a consequence of changing
scientific practices. Exclusion of DSI from the scope of the CBD and the Protocol is
therefore not a recommended option.
68 and A Orakhelasvili, The Interpretation of Acts and Rules in Public International Law (Oxford University
Press, 2008), 395. 43 S Zappalà, ‘Can Legality Trump Effectiveness in Today’s International Law?’ in Antonio Cassesse (ed),
Realizing Utopia (Oxford University Press 2012), 105. 44 See, for example, ‘Submission by the League of European Research Universities (Leru). Digital Sequence
Information = Nucleotide Sequence Data! But More Clarity Is Needed on Its Scope. ’ (Secretariat to the CBD,
2019) https://www.cbd.int/abs/DSI-views/2019/LERU-DSI.pdf, accessed October 2019. 45 S J Hiemstra et al, Digital Sequence Information (DSI). Options and Impact of Regulating Access and Benefit
Sharing - Stakeholder Perspectives (University of Wageningen, 2019), 13. See also, M A Bagley, Digital DNA:
The Nagoya Protocol, Intellectual Property Treaties, and Synthetic Biology (Wilson Centre, 2015), 7-8. 46 F Rohden et al, Combined Study on Dsi in Public and Private Databases and Dsi Traceability (Convention on
Biological Diversity, 2019.
15
Option 2: DSI is covered by the CBD and the Nagoya Protocol: benefits from use of DSI
are to be included in MAT and no additional measures are taken
The question as to whether DSI is included in the scope of the CBD and the Nagoya Protocol
is separate to, and logically precedes, the question of how the provisions of either treaty can
apply to DSI. Agreement on the inclusion of DSI within the scope of the CBD and the Nagoya
Protocol would therefore have the advantage of allowing international discussions to move
forward, onto the question: to what extent can these two treaties apply to DSI? In this option,
we explore the contention that no additional measures need be taken to deal with the specific
situation of DSI, assessing whether current arrangements under the Nagoya Protocol can bring
about benefit-sharing from the use of DSI.
The Nagoya Protocol stipulates that access to genetic resources for their utilisation is subject
to prior informed consent from the country of origin,47 and that benefits arising from the
utilisation of genetic resources as well as subsequent applications and commercialisation shall
be shared in a fair and equitable way with the country of origin, upon mutually agreed terms
(‘MAT’).48 These provisions of the Nagoya Protocol thus rely on the idea that a single resource
generates benefits for a user that should be shared with the provider MATs. The draft fact-
finding study conducted for the CBD on domestic measures that address the use of DSI show
that some countries include conditions on the use of DSI as part of prior informed consent
(PIC) and MAT.49 Malawi, for example, includes in its MAT that publication of DSI must be
accompanied by a statement that the government of Malawi, “has commercial rights or other
further use rights in products or processes developed based on the research results of this DSI
[and that] Malawi requires what may be called a certificate of acknowledgement of source and
rights, to be included in digital publications”.50
It is, however, questionable whether this obligation suits the current open-access infrastructure
and, for example, the submission formats used by INSDC. More importantly, the bilateral
nature of MAT fails to take into consideration that DSI is not used as the sole source for bio-
innovation, but it is rather screened with other sequences to find connections between traits and
functions. In other words, the premises upon which MATs are based are out of sync with
current research practices, resulting in difficulties in the valuation of monetary benefits in
respect of the contribution of DSI to commercial products, and in determining if and when
benefit-sharing obligations cease to exist. Finally, transparency issues in the biotech sector may
result in difficulties in obtaining information regarding both profits and monetary benefits
relating to the use of DSI. In conclusion, the inclusion in MATS of DSI is likely to be
plagued by a mismatch with current scientific practices, and the intractability of
determining the value and nature of benefit-sharing obligations. Therefore, this is not a
recommended option.
47 Article 7 Nagoya Protocol. 48 Article 5(1) Nagoya Protocol. 49 E K Margo Bagley, Manuel Ruiz Muller, Frederic Perron-Welch, Siva Thambisetty, Fact-Finding Study on
How Domestic Measures Address Benefit-Sharing Arising from Commercial and Non-Commercial Use of Digital
Sequence Information on Genetic Resources and Address the Use of Digital Sequence Information on Genetic
Resources for Research and Development (Convention on Biological Diversity, 2019). 50 Ibid, 23. See also Submission on DSI by the African Group to the CBD 2019, 4.
16
Option 3: The current system is complemented by a new track-and-trace system
In this option, we assume DSI is considered to fall within the scope of the CBD and the
Protocol, and additional measures are necessary to ensure benefit-sharing from the use of DSI.
Specifically, we explore the contention that the current bilateral approach to ABS could be
made operational with regard to DSI through a new track-and-trace system.
In this regard, we explore a number of potential options such as the use of a new monitoring
system for the retracing of the source of DSI or the application of blockchain technology to
DSI. Due to difficulties in the implementation and operation of these systems, we do not see
blockchain as a recommended option. Where the focus is put on track-and-trace only, the
improvement of existing structures is needed. However, we contend that improved tracking
does not resolve significant issues related to valuation in the bilateral ABS system. Indeed,
within the proposed solution of a multilateral platform (Option 6 below), improving options
for tracking should not be the primary focus, but such improvements – where they target
existing infrastructures – could contribute to enhancing the interoperability of systems.
a) Background
It addition to the difficulty of valuing netary benefits discussed under option 2 above, there are
other factors that complicate the application of the current ABS regime to DSI, relating to the
(in)ability to track information and to monitor use . With regard to NSD, as a specific form of
DSI, there is already something of a tracking system in place under the INSDC database
structure, which could be further built upon, but even improved implementation is still likely
to pose challenges for monitoring and the valuation of monetary benefits. The draft study on
traceability conducted for the CBD emphasised that moving beyond existing infrastructures for
NSD is likely to be costly, will lead to separation and fragmentation of processes, with negative
impacts on research, and may come with its own practical and technical challenges.51 Keeping
this in mind, this section will consider two options for a new track-and/or-trace system in light
of the potential to overcome persistent issues of monitoring: a system to trace back the origin
upon use and a blockchain-based system.
b) Retracing of information
Track-and-trace is not a term with a single unified definition; instead, it may refer both to
systems that trace back to the original source upon (commercial) use, or to the continuous
tracking processes of information and use along the value chain. Examples of the former
include tools developed under the World Federation for Culture Collections (WFCC) and the
World Data Centre for Microorganisms (WDCM), to search different databases to identify
uses.52 Yet, it is recognised that the success of such a monitoring system for (commercial) end-
uses only is still ultimately dependent on a form of a downstream support system that allows
51 Rohden et al 2019 (supra, n 46), 50 and 52. 52 PIP Framework Advisory Group on Monitoring Options 2015, 15; see also P Desmeth, ‘The Nagoya Protocol
Applied to Microbial Genetic Resources’ in Ipek KurtboK (ed), Microbial Resources: From Functional Existence
in Nature to Applications (Academic Press 2017), 214-215 on the TRUST system.
17
for consistent identification of the source. On the other hand, a ‘regularising procedure’ in cases
where such provenance cannot be established, “must remain exceptional”.53 In case of the
WFCC and the WDCM, such a support system consists of the Global Catalogue of
Microorganisms,54 and the Global Unique Identifiers (GUIDs).55 It must, however, be noted
that monitoring of commercial use at the end of a value chain based on retracing of the source
is in these instances only applied to specific sub-categories of genetic resources and that it is
highly uncertain that the approach could be extended to include uses of all genetic resources
and DSI.56 Indeed, although the recent CBD study on traceability found that 16% of studied
DSI submissions to the INDSC had a country tag and for 44% of samples the country of origin
could be obtained from the publication, this still leaves a large percentage of submissions for
which the country of origin is missing.57
With regard to genetic resources, for example, the EU puts a ‘due diligence’ obligation on
users, obliging them to: “seek, keep and transfer”58 important documents such as the
internationally-recognised certificate of compliance (IRCC) or equivalent information that
includes the date and place of access, a description of the resource, its source, the presence or
absence of rights and obligations relating to benefit-sharing, access permits and MAT.59 Even
with regard to physical resources, this chain is often non-linear, with resources, for example,
being shared among ex situ collections before being passed to other users, posing difficulties
for tracking and involving administrative burdens that some (notably non-commercial) users
may find hard to comply with.60 The particular nature of DSI means that some issues related to
the tracking of information, notably with regard to identifying provenance through the research
process, may be amplified.
As identified by the recent combined study conducted for the CBD on ‘DSI in public and
private databases and DSI traceability’,61 there are, however, some existing infrastructures that
could contribute to resolving issues of tracking with regard to certain types of DSI, notably
Nucleotide Sequence Data (NSD), without the need for implementation of a new track-and-
trace system. NSD “are the direct outcome of nucleotide (DNA or RNA) sequencing of a
53 Mosaicc - Micro-Organisms Sustainable Use and Access Regulation International Code of Conduct (Belgian
Co-ordinated Colletions of Micro-Organisms, 2011), p7; also Submission of the World Federation for Culture
Collection (Wfcc), World Data Centre for Microorganisms (Wdcm) & Transparent User-Friendly System of
Transfer Programme (Trust) for Notification Scbd/Abs/Vn/Kg/Jh/86849 (Secretariat to the Convention on
Biological Diversity, 2018), 3. 54 ‘Global Catalogue of Microorganisms’ http://gcm.wfcc.info/, accessed November 2019. 55 Desmeth 2017 (supra, n 52), 216. 56 Note in this regard also P Oldham and S Hall, Intellectual Property, Informatics and Plant Genetic Resources
(FAO, 2012), 203-208, which suggests in the context of the ITGPRFA that although patents can still often be
traced back to species listed in Annex I of the treaty, that this is likely due to its limited scope and the nature of
agricultural biotechnology. 57 Rohden et al 2019 (supra, n 46), 42-43, it is noted, however, that this covers the total amount of INSDC entries
but as newly submitted sequences have a much higher percentage of country reporting, so the coverage will
increase. 58 Article 4(3)(b) Regulation (EU) No 511/2014. 59 Article 4(3)(b)(i-vi) Regulation (EU) No 511/2014. 60 E Morgera and M Geelhoed, 'Utilisation' in the Nagoya Protocol and the Eu Abs Regulation for the Upstream
Actors (University of Edinburgh, for the European Commission, 2016), 29. 61 Rohden et al 2019 (supra, n 46).
18
genetic resource”,62 and also include “information on the sequence assembly, its annotation
and genetic mapping.”63 In particular, where NSD, as a precondition of publication, is
submitted to the International Nucleotide Sequence Data Collaboration (INSDC), 64 it is given
an individual Accession Number (AN), which is the “cornerstone of NSD traceability”.65 Since
1998, a metadata field to provide information on the country of origin has been provided in the
INSDC database submission form and it has been mandatory to submit this information since
2011.66 Also, it could be possible within the INSDC to add a field for reference to the unique
identifier of the IRCC.67 Lastly, it could be possible to be given an AN for metadata associated
with NSDs, which allows for submission of one form for a project that may cover hundreds or
thousands of sequences that are linked to a single collection.68
The INSDC is central to the wider network of databases for NSD.69 Nonetheless, its current
potential is limited by the fact that only 16% of analysed NSD did come with a country tag,
and none made reference to MAT.70 Moreover, it has been held that due to the volume of
transactions the system may be prone to human error,71 and can – due to its openness – be
misused by users in bad faith.72 Ensuring user compliance through monitoring and enforcement
is likely to be an issue whilst a single sequence can be split into parts, synthesised and modified
in a way that it can be made unrecognisable,73 and can be reused indefinitely.74 Once linkages
between DSI and its original source have been lost, retracing may be very difficult.75 A further
complicating factor is the fact that algorithms can be used to compare sequences to others that
exist in other databases, allowing users to identify similar sequences that do not have the same
restrictions on use and obligations on benefit-sharing.76 The resulting unintended consequences
could be that some sectors that are more closely linked to specific conditions in certain
countries will be more negatively impacted by the obligations that follow from the international
62 Ibid, 11. 63 Ibid, 11. 64 Journals and literature search engines also use Digital Object Identifiers (DOI) to link the respective publication
back to the submitted NSD. 65 Rohden et al 2019 (supra, n 46), 2. 66 Ibid, 27-28. 67 Ibid, 36. 68 Ibid, 33. 69 Ibid, 15. 70 Ibid, 39 and 3. It is noted that for 44% of studied NSD entries without a country tag this information could be
retrieved from the publication, and the omission was believed to be primarily caused by automated uploads of
large amounts of sequences with incomplete metadata; a process that could still be optimised (p 43). 71 Ibid, 38. See on the volume of transactions also E Karger, Study on the Use of Digital Sequence Information on
Genetic Resources in Germany (German Competent National Authority for the Nagoya Protocol, 2018), 28. 72 Rohden et al 2019 (supra, n 46), 45-46. 73 Laird and Wynberg 2018 (supra, n 5), 54. 74 Karger 2018 (supra, n 71), 29. 75 Lawson and Rourke 2016 (supra, n 31), 116. 76 Welch 2017 (supra, n 18), 14.
19
ABS regime,77 and that other sectors may choose to move away from those countries which
have put ABS rules in place, potentially to the detriment of conservation research.78
c) Blockchain
Where monitoring end-uses is unlikely to be a successful track-and-trace option for all DSI that
would fall within the scope of the CBD and the Nagoya Protocol, the focus has generally been
on continuous and consistent tracking of provenance along the value chain. Tracked metadata
can further include legal documentation (with PIC/MAT) or it can adopt a more hybrid
approach where such information can be retrieved through a separate but interlinked legal
database. One option that is frequently mentioned as a new tracking solution is blockchain
which is a type of distributed ledger technology. It is most well-known for its application to
Bitcoin, but its potential has been recognised much more broadly.79 It is considered to promote,
“the empowerment of citizens”80 more generally, or of specific users groups in particular, by
giving them the opportunity to control their own data, because the technology is autonomous
in the sense that it does not rely on a central authority or third party to be implemented.81 Put
simply, blockchain “is an open ledger of information that can be used to record and track
transactions, and which is exchanged and verified on a peer-to-peer network”.82 As the name
suggests, blockchain consists of a chain of blocks with information, which are
cryptographically time-stamped and linked to record any transaction. The information in the
chain is immutable, which means that it is very difficult to change the information in the blocks,
thereby providing protection against tampering. A block has a unique hash which identifies the
block and its content. Each block also contains the hash of the previous block, thus creating a
chain, which makes it suitable for tracking and tracing.
For the purpose of tracking in the context of DSI, blockchain could, in theory, allow for the
transfer of sequence data,83 and of accompanying information on provenance and terms of use,
throughout complex value chains. The approach of blockchain likewise aligns well with the
fluid, open access, and networked approach of DSI today. There are, however, other advantages
associated with the use of blockchain. Firstly, terms of use may not only be included as
metadata but can also be attached through so-called smart contracts. Smart contracts are
computer programs that can automatically perform some functions,”84 for example the
execution of simple, pre-specified terms and conditions, thereby boosting the speed and
77 This includes, for example, agriculture which often requires a focus on the region where a specific crop is
grown, see Laird and Wynberg 2018 (supra, n 5), 51. 78 See, for example, ‘Joint Submission on Digital Sequence Information on Genetic Resources – Concept and
Benefit-Sharing’ (Secretariat to the CBD, 2019) https://www.cbd.int/abs/DSI-views/2019/DNFS-VBIO-LVB-
DSI.pdf, accessed October 2019, 4. Also, example Scott and Berry (supra, n 21), 37. 79 See, for example, European Parliament, 'Resolution on Distributed Ledger Technologies and Blockchains:
Building Trust with Disintermediation' P8_TA(2018)0373. 80 Ibid, Preamble A. 81 Rohden et al 2019 (supra, n 46). 82 B Clark, ‘Blockchain and IP Law: A Match Made in Crypto Heaven?’ (WIPO Magazine 2018)
https://www.wipo.int/wipo_magazine/en/2018/01/article_0005.html, accessed November 2019. 83 This, however, is complicated by the fact that large sequences will use of massive storage space and
computational power, Rohden et al 2019 (supra, n 46), 48. 84 G Hileman and M Rauchs, ‘Global Blockchain Benchmark Study’ (Cambridge Centre for Alternative Finance,
2017) https://www.ey.com/Publication/vwLUAssets/ey-global-blockchain-benchmarking-study-2017/$FILE/ey-
global-blockchain-benchmarking-study-2017.pdf, accessed November 2019.
20
efficiency of transactions.85 These may function similarly to click-through-agreements which
require acceptance of the conditions of use before access to the sequence, with the additional
advantage of providing a record that the terms were accepted by the user.86 Moreover, simple
terms could be made easily executable through smart contracts thus solving potential issues of
enforcement. Smart contracts “trigger transactions automatically when certain pre-defined
conditions are met”.87 For example, access to DSI could, in theory, be conditioned upon
payment of a fee. More profoundly, it has been suggested that smart contracts and blockchain
could be used to establish and enforce intellectual property (IP) licenses and transmit payments
of licensing fees or royalties to IP owners.88 Furthermore, encryption for confidential IP data
could, for example, be used to provide protection for trade secrets and facilitate compliance
with the EU Trade Secrets Directive.89
There are, however, also disadvantages associated with the use of blockchain technology. From
a holistic environmental perspective, its current energy footprint should not be disregarded.
The technology relies on the computational power of each participant in the network (called
nodes) but it is estimated that bitcoin’s energy consumption alone, and notably a process called
‘proof-of-work’ which gives the blockchain ledger security against tampering, is comparable
to the annual energy consumption in Austria, “which costs 3.628 billion USD annually” and
exacerbates resource use and carbon emissions.90 In addition, it is also predicted to require
“high up-front investment for the setup of the system and permanent infrastructure costs for
the upkeep”.91 Accordingly, the benefits generated by such an expensive system are likely to
be outweighed quite significantly by its broader costs.
The same study also signals two other important risks of introducing the blockchain technology
for track-and-trace of DSI: the first relates to the fact that DSI can easily be distributed outside
of the chain and there is no clear incentive for other users to remain within the blockchain.92
While bitcoin taken outside the blockchain loses all value, which practically ensures that users
have all the interest to stay within the system, the same cannot be said for DSI.93 DSI outside
of the blockchain system is still equally valuable as DSI,94 so there is no incentive to remain
within block chain once DSI has been obtained. It is difficult to see how this lack of incentive
85 F Perron-Welch, ‘Blockchain Technology and Access and Benefit-Sharing’ (ABS Canada, 2018)
<http://www.abs-canada.org/food-for-thought/blockchain-technology-and-access-and-benefit-sharing/>,
accessed November 2019. 86 Ibid, 47. 87 A Kumar, ‘Smart Contracts on the Blockchain: A Deep Dive into Smart Contracts’ (Medium 2017)
https://medium.com/@abhibvp003/smart-contracts-on-the-blockchain-a-deep-dive-in-to-smart-contracts-
9616ad26428c, accessed November 2019. 88 C Frison et al, ‘Blockchain Technology for IP Management & Governance: Exploring Its Potential to Restore
Trust and Resilience in the Plant and Biomedical Sectors’ (Modern Intellectual Property Governance and
Openness in Europe: A Long and Winding Road?), 2018, Abstract. See also Clark 2018 (supra n 82). 89 Directive 2016/943 on the Protection of Undisclosed Know-How and Business Information (Trade Secrets)
against Their Unlawful Acquisition, Use and Disclosure [2016] OJ L OJ L 157/1; ‘How Can Blockchain and
Trade Secrets Support Each Other?’ (Mathias Avocats 2017) https://www.avocats-mathias.com/droit-des-
affaires/blockchain-trade-secrets, accessed November 2019. 90 Rohden et al 2019 (supra, n 46), 47. 91 Ibid, 50. 92 Ibid, 50. 93 Ibid, 50 94 Ibid.
21
for users to stay within the blockchain could be overcome. The second risk is that introduction
of a new system that is not necessarily compatible with existing infrastructures (notably
INSDC) may lead to (further) fragmentation of efforts, and increase user costs, with a knock-
on effect for innovation and scientific collaboration. Furthermore, many users of DSI are in the
Global South, and so this would need to be borne in mind when considering any proposals that
add to the cost of use. As has already been noted in the context of a monitoring and tracking
study conducted ten years ago, it is not the theoretical and technical feasibility of a system that
often determines its success, but such a system must also be socially tested to ensure that the
needs of users are met, in order to effectively promote widespread application.95
Lastly, it must be noted that legal complexities may also be associated with the use of
blockchain technology, related to potential issues of compliance with the EU’s General Data
Protection Regulation (GDPR) for a network that is publicly accessible,96 and challenges of
determining applicable law and jurisdiction as blockchain is detached from any centralised
authority.97
d) Moving beyond track-and-trace
It follows from the above that as a track-and-trace system, blockchain is unlikely to be the
preferred option. Indeed, as discussed above, opportunities have been identified to further
develop existing structures like tracking under the INDSC, by creating better linkages with the
original genetic resource and improve traceability of the country of origin, as well as create a
new metadata field to include information on the internationally-recognised certificate of
compliance (IRCC).98 In light of the cost effectiveness and high user acceptance of reliance on
existing, widely used structures, improvement of such structures is likely to be preferable.
Nonetheless, such an improved track-and-trace system still does not address the significant
problems of valuation of monetary benefits (option 2 above) of the current bilateral system that
relies on the negotiation of MATs. It is therefore not a recommended option.
Within the proposed hybrid approach we set out in options 6 below and 7 below, the practical
value of improved tracking-and-tracing for the operation of a multilateral platform is limited,
and will therefore not be the focus of the recommendations under this study. Nonetheless,
efforts to improve the general interoperability of systems related to DSI should be encouraged,
and as we explore in option 6 below, inspiration can be taken from the Global Information
System (GLIS) under the ITPGRFA.
95 G M Garrity et al, Studies on Monitoring and Tracking Genetic Resources (Secretariat to the Convention on
Biological Diversity, 2009). Similarly, also Desmeth 2017 (supra, n 52), 211: “The misperception of the situation
by the lawmakers and inappropriate expertise input during and around the negotiations led to inappropriate
solutions that are seen as not relevant and thus rejected because not credible by actors in the field.” 96 T Lyons et al, Blockchain and the GDPR (The European Union Blockchain Observatory and Forum, 2018); 97 Frison et al 2018 (supra, n 88); J Mckinlay et al, ‘Blockchain: Background, Challenges and Legal Issues’ (DLA
Piper Publications 2018) https://www.dlapiper.com/en/denmark/insights/publications/2017/06/blockchain-
background-challenges-legal-issues/, accessed November 2019. 98 Rohden et al 2019 (supra, n 46), 53.
22
It is, lastly, important to note that the recommendations in this study focus on DSI in public
databases, like the INDSC. Questions related to DSI from private databases, which is a niche,
although significant, area, would need to be studied in their own right.
23
Option 4: A sui generis system inspired by copyright
Following on from the above discussion, it is clear that the search for ways forward in respect
of DSI may need to include other domains of law. In this regard, intellectual property has
frequently been raised as having possible relevance to the protection of genetic resources as
well as traditional knowledge associated with genetic resources. The relevance of IP law can
be indirect, however: and we explore here whether IP law has already addressed similar issues
that are faced under the CBD and the Nagoya Protocol with reference to DSI and therefore
whether certain legal solutions and lessons learnt can be explored as a source of inspiration
under the CBD and Nagoya Protocol. In other words, we are not exploring the applicability of
IP law to DSI, which would raise questions about pre-empting negotiations under the World
Intellectual Property Organization. What we are exploring here is what international
biodiversity law can learn from IP law in dealing with comparable challenges, with a view to
devising an ad hoc approach under the CBD and/or the Nagoya Protocol. Such an approach
would not be grounded in IP law as such, but draw on useful approaches and tested solutions
that have been found in that domain. Notably, copyright law has evolved into a carefully
nuanced system that contains specific solutions potentially capable of responding to the
need of different users along a complex value chain that could be compared to that for
DSI. On that basis, we discuss how the tested approaches developed for copyright can be
adapted to the context of DSI with a view to 1) recognizing and rewarding the contribution of
States that conserve biodiversity on the basis of which DSI is generated; and 2) recognizing
more equitably the contributions of researchers in the Global South to the conservation of
biodiversity in their own countries and responding to their needs to collaborate with other
innovators along the DSI value chain.
Accordingly, in this section we explore the application of solutions inspired by copyright to
examine whether a sui generis system of protection could act as a possible way forward to
address the above-noted concerns surrounding DSI. In doing so, we explore a number of
possible options for such a sui generis system of protection. We conclude that a number of
practical issues might preclude the adoption of a sui generis regime based on copyright in and
of itself. But there is scope to infuse elements of a sui generis system based on copyright as
part of a broader hybrid approach to DSI, explored more fully in option 7.
a) Copyright in broad terms
It is important to note at the outset that while it is not incorrect to refer to international copyright
law, it is nevertheless the case that there is no ‘international’ copyright right.99 Accordingly,
while numerous treaties exist providing recognition of and protection to copyright,100 such
rights are protected under the domestic laws of countries.101 Accordingly, copyright law has
99 See discussion in B Bodo et al, 'Blockchain and smart contracts: the missing link in copyright licensing?' (2018)
26 International Journal of Law and Information Technology 311, 320. 100 E.g. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on
July 24, 1971 and amended in 1979. 101 Bodo 2018 (supra, n 99). Such protection is bolstered by the requirements of the World Trade Organisation,
General Agreement on Trade-Related Aspects of Intellectual Property, 1869 U.N.T.S. 299
33 I.L.M. 1197.
24
not been fully harmonised, either at the international level, or within the EU,102 although the
Berne Convention, for example, does set down some general principles applicable to copyright
law. Copyright protected works must be original. ‘Ideas’ are not protected by copyright;103
rather, it is the expression of an idea that is the subject of protection. The minimum term of
protection accorded by copyright is the author’s life plus 50 years, or 50 years if the author is
not a natural person. Many countries, including those of the EU, have periods in excess of this
minimum.
b) DSI and copyright – understanding the context
Discussions on the potential application of copyright to genetic sequences have been ongoing
for over 30 years.104 To the extent that proponents of copyright protection for genetic sequences
anticipate important benefits to innovation from the application of such protection, copyright
is depicted as having many advantages over other forms of intellectual property protection such
as patents.105 As will be explored more fully below, the monopoly right granted to patent
holders may prevent follow-on innovation in respect of a genetic resource and thereby inhibit
scientific research and development. In addition, recent court decisions have created significant
uncertainty as to the legal protection provided by patent law to certain genetic resources.106 By
contrast, and as will be discussed below, copyright offers a range of exceptions and provides
greater scope for follow-on innovation than is the case with patent protection. A sui generis
system inspired by copyright could potentially draw inspiration from such protections, as well
as the more nuanced approach offered by copyright so as to better be able to reflect the different
societal and policy needs at the heart of the DSI debate.107
If concern for DSI reflects the so-called ‘dematerialisation’108 of genetic information, the
potential application of copyright to DSI is a mark of the so-called ‘new’ materialist movement
which seeks to highlight the, “the qualities and characteristics originating from non-human
actors’ such that, ‘the scope of original expression beyond that which originates with a human
contributor, might result in an expanded incidence of authorship.”109 In essence, by focusing
upon the agency of non-human actors, “the human contributor might be considered more of a
102 Though there are elements of harmonisation within the EU i.e. the Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related
rights in the information society [2001] OJ L167/10. 103 Though ideas may attract patent protection. 104 See, for example, D L Burk, ‘Copyrightability of Recombinant DNA Sequences’ (1988 to 1989) 29 Jurimetrics
Journal 469 and I Kayton, ‘Copyright in Living Genetically Engineered Works’ (1982) George Washington Law
Review 191. 105 See, for example, discussion in N Lucchi ‘Genetic Copyright: An Alternative Method for Protecting and Using
Essential Public Knowledge Assets?’ (2018) 40 European Intellectual Property Review 766. 106 Ibid. 107 Ibid. 108 See, for example, M A Bagley, 'De-materialising genetic resources: synthetic biology, intellectual property and
the ABS bypass' in Charles R. McManis and Burton Ong (eds), Routledge Handbook of Biodiversity and the Law
(Routledge, 2017), Chapter 15. 109 Burk, Dan L., 'Copyright and the new materialism' in Jessica C. Lai and Antoinette Maget Dominice (eds),
Intellectual Property and Access to Im/material Goods (Edward Elgar, 2016), Chapter 2, 61.
25
curator or steward for the assemblage of actors who contributed to the creative result”110 which
copyright could protect. Here, the ‘creative result’ would be the genetic outputs of nature.
c) Reimagining copyright protection?
To date copyright protection has not in general been extended to DSI.111 Numerous
commentators have nevertheless posited that copyright is indeed flexible enough to “handle
contemporary technologies that produce living organisms or organic components, but
contemporary judges, practitioners, and scholars must reframe and, in some instances,
reimagine the proper contours of copyrightability in order to bring living works under copyright
protection."112 Numerous commentators, however, have in general rejected the notion that
copyright protection could apply to naturally occurring DNA sequences.113
Some commentators have expressed concern that copyright – and arguably by extension, a sui
generis system based on copyright - is a ‘poor fit for synthetic biology’ as there is little scope
for an author’s expressive choices.114 In essence, if the central premise of copyright is
protection of originality, what scope would there be for originality of expression in respect of
the generation of DSI from naturally occurring sequences? Holman, for example, argues that
copyright protection for DSI will likely depend upon the element of creativity present in a
sequence. By extension, in his view, any extension of copyright protection to what he terms
‘genetic code’ would need to be justified on public policy grounds. For Holman, optimal
innovation policy, “would likely impose some sort of requirement that, in order to be
copyrightable, a synthetic sequence must incorporate some significant degree of variation
relative to the closest naturally-occurring counterpart.”115
However, Holman’s view of public policy does not include considerations of the objectives of
the CBD or the Nagoya Protocol, which could undergird policy arguments in favour of the
creation of a sui generis regime inspired by copyright law to provide protection for naturally
occurring genetic sequences. Such a scheme would reflect the objectives of the CBD with a
view to rewarding provider countries for their contribution to biodiversity. Broad acceptance
of the need to prioritize these public policy objectives can be justified on the basis of the
alarming findings on the unprecedented rate of biodiversity loss and its wide-ranging
110 Ibid, 61 111 Though this is not to say that companies have not tried to assert copyright over DSI; our thanks to Paul Oldham
for this insight. 112 M D Murray, 'Post-Myriad Genetics Copyright of Synthetic Biology and Living Media' (2014) 10(1) Oklahoma
Journal of Law and Technology 1, 8. It is notable that copyright has been ‘reframed’ over the years to extend
protection to software which has been analogised to genetic ‘code’ by certain commentators such as R Neethu.
'Rethinking the debate on genetic copyright in Europe in the era of biobanks and synthetic biology' (2018) 40 (3)
European Intellectual Property Review 172. See also A Torrance, ‘DNA Copyright’ (2011) 46 Valapraiso
University Law Review 1; A Torrance and L Kahl, ‘Bringing Standards to Life: Synthetic Biology Standards and
Intellectual Property’ (2013) 30 Santa Clara High Technology Law Journal 199, pp. 226-227 and Rai and Boyle
2007 (supra, n 10). 113 See, for example, Murray, ibid. 114 Bagley 2017 (supra, n 108). 115 C Holman, 'Charting the Contours of a Copyright Regime Optimized for Engineered Genetic Code' (2016)
available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2833948, accessed December 2019, 21.
26
implications for human well-being in the 2019 Global Assessment of Biodiversity and
Ecosystems Services.
d) A sui generis system inspired by copyright: the example of annotation?
In the previous section, concerns were raised regarding the potential need for originality in any
sui generis system for DSI inspired by copyright. While it is possible this requirement could
be abandoned under a sui generis system, it is worth considering whether there are already
potential mechanisms under the existing copyright systems which could address this
requirement, so the link with copyright is more pronounced. For instance, some commentators
such as Zhuang have posited that such originality may arise from annotation. In essence,
Zhuang opines that, “the major challenge of 21st century genetics is annotating and
understanding genes’ functions and structures, rather than determining their DNA
sequence.”116 For example, proteomics experiments produce large quantities of data which
require to be interpreted so as to ascertain the relevance from a biological standpoint of any
identified proteins.117 Functional annotation of proteins is hence as significant as the
identification of the protein itself.118 Accordingly, it is the ‘informational annotation’ of a
sequence which is of value119 with such annotation reflecting the geneticist’s expressive
choices.120 Hence according to Zhuang, “when describing a gene, a geneticist selects and
arranges from (a) vocabulary an expression that forms a genetic copyright.”121 This
arrangement and the expressive choices involved therein would seemingly fulfil the
requirements of originality under copyright law. An agreed vocabulary would also help to
facilitate the implementation of a genetic copyright regime with such copyrights then requiring
registration to assist in enforcement.122 In line with the usual application of copyright law,
independent creation of an identical annotation would not result in infringement. Numerous
exceptions also exist under copyright to provide for a balance between protection and use.123
The regime envisaged by Zhuang would also allow others to use the underlying gene since
what is protected is the expression; that is, the annotations of the gene can be the subject of
copyright protection, not the underlying ‘idea’ behind that expression which in essence is the
gene itself.124 This would allow ‘improvements’ to be made to the ‘idea’, in contrast to the
patent regime which does not permit follow-on improvements to patented inventions.125 A
regime inspired by copyright could therefore potentially safeguard, recognize and encourage
follow-on innovation, thereby ensuring a better balance in terms of societal interests. However,
it is also the case that such a regime might favour researchers and companies who do the bulk
116 J J Zhuang, ‘Copyright: Better Fitting Genes’ (2015) 97(3) Journal of the Patent and Trademark Office Society
442. 117 C M Carnielli et al, 'Functional annotations and biological interpretations of proteomics data' (2015) 1854
Biochimica et Biophysica Acta 46. 118 Ibid. 119 Zhuang 2015 (supra, n 116) 449. 120 Ibid, 450. 121 Ibid, 450. 122 Ibid, 452. 123 Ibid, 456 – 457. 124 Ibid, 458. 125 Ibid, 458 – 459.
27
of annotation. To the extent that it may be said there is a technological divide between the
Global South and the developed world, this could lead to inequitable results.
Ultimately, Zhuang’s proposed genetic copyright system which would protect highly annotated
sequences has a certain merit. But it would not directly address the claims of provider countries
in respect of DSI generated from genetic resources in their territory, since the ‘idea’ – that is,
the ‘raw’126 as opposed to ‘curated’127 genetic information itself – would not be protected. In
essence, it is the ‘creative effort’ that would be rewarded, not the rights of provider countries.
Nevertheless, this proposal demonstrates the potential merit of relying on existing approaches
from copyright to respond to particular issues in the context of DSI.
(e) A sui generis system of protection based on the rights of provider countries?
The application of a regime inspired by copyright to DSI could potentially provide further legal
recognition of the sovereignty claims of ‘provider’ countries over such information, allowing
a degree of control as well as monetary benefit-sharing in the form of royalties from licensing.
The idea here would be that countries of origin of genetic resources would hold rights similar
to copyright over DSI for a certain period of time under a sui generis system of protection
inspired by copyright. Sui generis systems of intellectual property rights protection are not
unusual and have been implemented in instances under which existing systems of rights
protection were not able to address adequately particular sectoral needs.128 Examples include
sui generis database protection,129 as well as a sui generis system of plant variety protection
specifically envisaged under Article 27.3(b) of the WTO TRIPS Agreement although these
systems are designed to protect the rights of individuals, per se, as opposed to the rights of
States.
In respect of the application of a sui generis system inspired by copyright to provide legal
recognition of the claims of ‘provider; countries, a major concern arises regarding the need to
address the complexity of ‘shared’ sequences for which there may not be a single ‘provider’
country. In essence, and as discussed above, where sequences are shared between countries,
the idea of a ‘provider’ country becomes more problematic, particularly in the context of a
regime drawing inspiration from intellectual property. In essence, questions of valuation
(discussed above) would abound under such a system and it is difficult to see how these would
be overcome. In addition, issues of tracking would inevitably arise. While watermarking of
sequences could in principle allow for tracing,130 and likely satisfy the requirement of original
126 Laird and Wynberg 2018 (supra, n 5). 127 Laird and Wynberg 2018 (supra, n 5). 128 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore, Elements of a Sui Generis System for the Protection of Traditional Knowledge (WIPO/GRTKF/IC/3/8,
2002)> accessed December 2019. See also discussion in A Chander and M Sunder, ‘The Romance of the Public
Domain’ (2004) 92 (5) California Law Review 1331, 1355. 129 See e.g. Directive 96/9/EC on the legal protection of databases [1996] OJ L 77/20. 130 For further analysis, see N Yamamoto et al, 'A watermarking system for labeling genomic DNA' (2014) 31
Plant Biotechnology 241,
https://www.jstage.jst.go.jp/article/plantbiotechnology/advpub/0/advpub_14.0609b/_article/-char/ja/, accessed
October 2019.
28
expression such as to attract protection (assuming the requirement for originality is retained),
in practice it would not be cost-effective to watermark large amounts of DNA.131 In addition,
such watermarks can be subject to degradation through naturally occurring mutation and at this
point in time are not considered a viable or realistic option.132
A separate concern arises from the fact that a sui generis system based on copyright to
recognise and reward provider States would also need to respond to the different needs of
groups of users of DSI, particularly given that many databases containing DSI are in the ‘true’
public domain133 with any subsequent restrictions such as costs imposed on such information
risking a potential impact on biotechnological innovation in areas such as health, agriculture
and biodiversity conservation itself.134 As James Boyle has opined, “enclosure of the
information commons clearly has the potential to harm innovation as well as to support it.”135
Indeed, it is to be noted that the scientific and legal communities have long expressed concern
regarding the potential negative impact of IP rights on innovation. Numerous efforts have
therefore been made to innovate around ‘patent thickets’ that seemingly privilege large
companies and may lock out individual researchers and small companies - including those in
the Global South.136 So a proposed sui generis system should take into account the lessons
learnt about actual and potential negative impacts on innovation, including unequal impacts on
researchers in the Global South, particularly when they are contributing to biodiversity
conservation.
f) A broader system encompassing the range of actors along the DSI value chain?
Taking into account the preceding discussion, there may be merit in exploring the creation of
a sui generis system of copyright-like protection for DSI which is capable of responding to the
variety of needs, and recognizing the various contribution, of different actors all along the DSI
value chain: recognition of the ‘provider country’ for its contribution to conservation of
biodiversity – while noting the complexity of sequences ‘shared’ between countries - the
scientist who assembled the sequence, who annotated it, who genotyped, who aggregated the
data as well as potentially the database manager,137 thereby providing a system that can be
responsive to the different ‘creators’ of DSI. Such a system could draw on the operation of the
bundle of rights applicable to the musical context.
This context is particularly relevant since it gives explicit recognition to the contribution of the
different actors involved in music production with the copyright which affixes to the
131 M A Bagley, Digital DNA: The Nagoya Protocol, Intellectual Property Treaties, and Synthetic Biology
(Wilson Centre, 2016), 12. 132 Ibid. 133 Laird and Wynberg 2018 (supra, n 5), 45. This is to be contrasted with an open source approach whereby
conditions may be attached to the use of such information. 134 See generally Laird and Wynberg 2018 (supra, n 5) on the use of DSI. 135 J Boyle, ‘The Second Enclosure Movement and the Construction of the Public Domain, in James Boyle (ed),
Collected Papers: Duke Conference on the Public Domain (Center for the Public Domain, 2003) 33, at 44. 136 See generally Jerome H Reichman and Ruth L Okedji, ‘When Copyright Law and Science Collide:
Empowering Digitally Integrated Research Methods on a Global Scale’ (2012) 96 Minnesota Law Review 1362. 137 Albeit that the database may itself enjoy intellectual property protection already; see e.g. Directive 96/9/EC on
the legal protection of databases [1996] OJ L 77/20
29
composition of a piece of music, for example, distinct to the sound recording copyright which
typically resides with the production company. Performances of musical works can also attract
performance rights protection, with such performance rights existing in addition to any
underlying right(s) in the musical piece itself.138 Accordingly, a range of models could
potentially be analogised from, in order to design a sui generis system of copyright-like
protection for genetic resources capable of taking into account the contribution of different
actors along the DSI value chain. This seems particularly promising with a view to addressing
equity issues for researchers in the Global South and recognizing their contributions to
biodiversity conservation. Copyright may in effect be considered more suited than other
forms of intellectual property protection such as patents to provide a nuanced approach to
protection in that numerous exceptions exist to copyright which would arguably allow for a
variety of uses of protected sequences- such as for use in instruction and non-commercial
research,139 which contribute to biodiversity conservation. Furthermore, consideration could
be given to disaggregating the copyright inspired bundle to address different kinds of DSI, with
sectoral approaches also possible.
It must, however, be acknowledged that the large number of actors involved in DSI ‘creation’
would require more in-depth study of how best to operationalise such a scheme without it
becoming so complex that the costs of its operationalisation outweigh the benefits. In addition,
the impact of any new system, particularly upon innovation globally (and the need to foster
cooperation in innovation along the DSI value chain across Global North/South), needs
carefully considered. One particular concern that might arise is the very long period of
protection normally applicable to copyright although a sui generis system of copyright-like
protection could arguably deviate from this long period of protection since140 it could be
designed to fall outside the scope of existing copyright treaties.141 There may also be a benefit
to exploring other approaches to managing the relationship between providers/‘creators’ and
different types of users such as that encompassed within the open software movement, which
is underpinned by the impetus to promote both the “freedom to operate and freedom to
cooperate.”142
On the whole, there is much potential for the above-described system, which focuses on the
potential for a layered, sui generis approach to DSI inspired by copyright that recognises the
range of ‘creators’ involved in the ‘production’ of DSI. Much more analysis and discussion,
however, is needed to make sure that such a system effectively and fairly addresses the
concerns of Parties regarding the role of DSI in achieving the objectives of the CBD and
possibly also recognising Parties’ and Global South researchers’ contributions to biodiversity
conservation. Accordingly, this is not be an approach that we would recommend on its own,
138 T Iverson, ‘Original compilations of musical works: can DJ sets be protected by copyright?’ in Enrico Bonadio
and Nicola Lucchi (eds), Non-conventional copyright (Edward Elgar, 2018) 201, 211 139 Welch 2017 (supra, n 18), 22 - citing Torrance 2011 (supra, n 109). 140 Holman 2016 (supra, n 115), 30 to 31. 141 It would also arguably fall outside the scope of the TRIPS Agreement. 142 Laird and Wynberg 2018 (supra, n 5), 37, though see generally 36-38 on open software.
30
but could be part of a hybrid system (option 7) as the proposed dialogue platform (option 6)
could provide a forum to assess options in a generative and iterative manner.
g) Operationalisation
Regardless of the scope of a copyright-inspired sui generis system for DSI, that is, whether it
solely focuses on Parties’ contribution to DSI, or takes a more layered approach, in order to
function effectively, any such regime would need to be accompanied by some sort of licensing
system to ensure a degree of control over the sequence(s) as well as payment of royalties. As
described in option 3 above, blockchain, together with smart contracts, could be utilised here
to ensure a ‘quasi-immutable’ record of initial ownership143 together with speedy and efficient
licensing arrangements. This would, in effect, allow for a ‘private ordering’ of copyright.144
However, as discussed previously, a blockchain based system may in practice prove difficult
to operationalise due to the lack of incentives for users not to remove information from the
blockchain.145 However, the advantage of a copyright-like system is that incidences of
‘cheating’ may be subject to the remedies for infringement available under copyright law such
as monetary and equitable relief.
As a way to overcome the above identified problem, suggestions have been made to draw on
the so-called platform economy and develop a Netflix or Spotify-type bundle for DSI which
could be supported by subscription fees.146 In essence, this model would support highly curated
and/or annotated DSI, for which users would pay subscription fees to access. This ‘club type’
model has been proposed by Correa in respect of access to plant genetic resources for food and
agriculture (‘PGRFA’) in the Multilateral System (‘MLS’) with those accessing the system
paying an annual fee corresponding to, for instance, 0.2% of their annual seed sales of species
in the MLS.147 A subscription system for access to DSI could potentially see the fees
redistributed to States as rights holders as a type of monetary benefit-sharing for access to such
resources though, as noted above, the bulk of country-tagged NSD deposits to the INSDC are
from 4 countries – USA, China, Canada, and Japan which together account for more than 50%
of country-tagged NSD.148 Accordingly, it is not altogether certain that monetary benefit-
sharing to ‘rights’ holders in this context would benefit mega-diverse countries. In addition,
such a system, if applied to the broad range of DSI within scope, would be well beyond the
realms of financial feasibility as it would require a vast range of bioinformatics tools in order
to have any value to users, and would need to be a closed system (otherwise, why pay?), raising
costs further.149 Concerns might also arise as to how to distinguish between different categories
of users such as students, researchers from the Global South, as well as non-commercial users
143 See discussion in Bodo 2018 (supra, n 99). 144 Ibid. 145 See option 3 above. 146 Rohden at al 2019 (supra, n 46), 51. 147 C M Correa, ‘ITPGRFA: Options to Promote the Wider Application of Article 6.11 of the SMTA and to
Enhance Benefit-Sharing Legal Opinion’ (Berne Declaration, 2013)
https://www.utviklingsfondet.no/files/uf/documents/ITPGRFA_Legal_opinion_2013.pdf, accessed October
2019. 148 Rohden et al 2019 (supra, n 46). 149 Rohden et al 2019 (supra, n 46), 51.
31
more general – so consideration needs to be given to how this approach would effectively
support biodiversity conservation.
Other potential options include requiring users to agree to specific licensing conditions –
including, where relevant, payment of remuneration – upon access to certain databases.
Sectoral/tailored approaches could be utilised here to ensure fine-tuning of agreements in
accordance with the type of DSI/sector. Licenses could, for example, be designed to reflect
the class of user with different licenses, for example, applying to commercial and non-
commercial use.150
In respect of the above, conditions of use notices and click-through agreements requiring users
to confirm agreement to certain conditions when accessing DSI via specific databases are not
uncommon, but it is unclear to what extent such conditions are adhered to.151 While there may
be ways to ensure greater attention of, and adherence to, the likes of click-through
agreements,152 these would need to be accompanied by traceability mechanisms (see option 3
above) to reduce incentives to cheat, as well as ensure payment of royalties. Inserting licenses
at the point of access to a database would also require significant interaction between rights
holders and databases for such a system to function effectively and there would need to be
greater interoperability between databases. States as rights holders could, however, be
represented collectively so as to reduce associated transaction costs. Inspiration could be drawn
here from the private sector with organisations such as Broadcast Music Inc. (BMI) and the
American Society of Composers, Authors and Publishers (ASCAP) which currently offer rights
management services in the music domain.153 As outlined above, however, these would not
remove the need for enhanced systems of traceability to ensure licensing conditions are adhered
to. It is also an open question to what extent publicly available databases such as those under
the INSDC would be willing to include licensing conditions for database access with anecdotal
evidence suggesting that this idea would not be popular. In addition, the INSDC is publicly
financed by the US, EU and Japan and so it is not altogether clear to what extent adding another
layer of costly complexity to the system would be supported without defined and demonstrable
benefits being established in advance. Without further in-depth study into the costs and benefits
of such a system, it is difficult to make a more definitive assessment.
h) States’ rights under a domaine public payant model
Another possibility to protect States’ rights in a copyright-like approach is to draw inspiration
from the concept of domaine public payant, which has already explored in the context of
cultural heritage. In essence, “this principle applies to works that have lost copyright protection
and are in the public domain but for some reason are deemed important enough to receive
special attention that is expressed in the obligation to pay the state … a fee for the use of these
There are no sources in the current document.150 For an insightful commentary on different licensing
arrangements, see P Oldham, ‘An Access and Benefit-Sharing Commons? The Role of Commons/Open Source
Licenses in the International Regime on Access to Genetic Resources and Benefit Sharing’ (Secretariat to the
CBD, 2009) UNEP/CBD/WG-ABS/8/INF/3. See also Laird and Wynberg 2018 (supra, n 5). 151 Laird and Wynberg 2018 (supra, n 5), 36. 152 Ibid. 153 Holman 2016 (supra, n 115), 32.
32
works, crafts and arts.”154 The domaine public payant, or the “paying public domain” aims to
ameliorate the “harm caused by creating property rights over the common (cultural) pool from
which society draws, but at the same time, it imposes certain conditions on the use of works in
the public domain … (such as) the payment of fees.”155 Applied to the DSI domain, what we
term the digital domaine public payant, would recognise that DSI should not be treated as a
freely exploitable resource,156 but rather regulated as a semi-commons underpinned by the
principle that a fee should be paid in recognition of provider countries’ contribution to
biodiversity and in order to support the objectives of the CBD.157 This logic is based on a
combined and integrated reading of the objectives of the CBD and the global recognition of
their relevance for the realization of the SDGs, so the criteria for selecting which material is
subject to payment is related to the CBD subject matter and global public policy objectives that
depended on the effective implementation of the CBD.158 The digital domaine public payant
could be multilateralised with funds disbursed in accordance with CBD objectives, so as to
remove the issues with tracking and tracing as well as valuation identified above as problematic
(see option 7 below). The potential for a multilateral approach is outlined in option 5 below.
Examples of the domaine public payant in the cultural heritage sector can be found at national
level, which reveal some operational matters that need to be considered, should the approach
be extended to other contexts. Firstly, the domaine public payant applies to literary or artistic
works which are no longer copyright-protected but available in the public domain, with
payment due upon use rather than access, by major users rather than individuals such as
publishers, impresarios, record manufacturers, radio and television networks.159 Secondly, an
analysis conducted by WIPO in the 1980s, showed that some countries which apply the
domaine public payant required authorisation prior to use, or at least a declaration of use, but
international experts concluded that this was not a desirable approach in light of the inhibiting
effect on access.160 Furthermore, structural questions arise with regard to the authority that is
competent to collect and distribute fees, and the beneficiaries and types of funding provided.161
In Argentina, for example, payments received under the domaine public payant legislation is
154 M Ruiz Muller. 'Protecting Shared Traditional Knowledge: Issues, Challenges and Options' (2013) ICTSD
Issue Paper No. 39, 14. 155 L Lixinski, Intangible Cultural Heritage in International Law (Oxford University Press, 2013) 199. On the
domaine public payant, see also D J Gervais, ‘The Internationalization of Intellectual Property: New Challenges
from the Very Old and the Very New’ (2002) 12(3) Fordham Intellectual Property, Media & Entertainment Law
Journal 931, Giblin, R., 'Reimagining copyright's duration' in Rebecca Giblin and Kimberlee Weatherall (eds),
What if we could reimagine copyright? (ANU, 2017) chapter 6, D F Robinson, 'Is the Whole Greater than the Sum
of its Parts: A critical reflection on the WIPO IGC' in Charles R. McManis and Burton Ong (eds), Routledge
Handbook of Biodiversity and the Law (Routledge, 2017) chapter 23, C Mouchet, 'Problems of the Domaine
Public Payant' (1983) 8 Columbia Journal of Art and Law 137 and A Dietz, A Modern concept for the right of the
community of authors (domaine public payant) (1990) XXIV Copyright Bulletin 4. A useful overview is provided
in WIPO, Scoping Study on Copyright and Related Rights and the Public Domain' (2010)
CDIP/4/3/REV./STUDY/INF/1. 156 On a broader level, see J L Contreras, ‘Data Sharing, Latency Variables and the Science Commons’ (2010) 25
Berkeley Technology Law Journal 1601. 157 See generally Lixinski 2013 (supra n 155), 203. See also Ruiz Muller 2013 (supra, n 154), 15. 158 Ruiz Muller 2013 (supra, n 154) 14. 159 Mouchet (supra, n 155). 160 WIPO-Berne Union, ‘The “Domaine Public Payant”’ (Copyright, 1982), available at <
https://www.wipo.int/edocs/pubdocs/en/copyright/120/wipo_pub_120_1982_06.pdf> accessed March 2020. 161 Ibid, p 182.
33
the only source of income for the Fondo Nacional de las Artes and uses it to provide loans to
authors and artists, finance exhibitions and awards or fellowships.162 Other operational aspects
that have been considered at international level and within legal scholarship concern the types
of works that are covered, temporal and geographical scope and the method to calculate fees,
with discussed options varying from lump-sum payments to proportional revenue levies.163
Such considerations would also very much apply in the DSI context; most particularly in
respect of the questions of how (and arguably when?) should fees be paid and who should
disburse funds and to whom and indeed, for which purposes. We return to these issues in our
discussion in option 7 (below).
While more in-depth study is needed to understand the opportunities to that arise from adoption
of a multilateralised digitial domaine public payant approach to monetary benefit-sharing for
DSI, its value for moving the current debate towards multilateral solutions is that it can take
into account both the practical challenge that sequences may be common to a number of
countries and the principled issue of ensuring realization of the CBD objectives and contribute
to multiple SDGs is significant. As we discuss below, such an approach would be best
accompanied by a forum for dialogue and learning – what we term the hybrid approach set out
in option 7 - and so we explore further in option 7 possible options for operationalisation of the
digitial domaine public payant.
To sum up, a sui generis regime inspired by copyright could potentially have a number of
attractive features such as, 1) recognizing and rewarding the contribution of States that
conserve biodiversity on the basis of which DSI is generated; and 2) recognizing more
equitably the contributions of researchers in the Global South to the conservation of
biodiversity in their own countries and responding to their needs to collaborate with other
innovators along the DSI value chain. But it would likely encounter practical problems in its
operation, including those relating to practicality and cost. Licensing of such a system would
require considerable engagement with database managers and greater interoperability between
databases. Issues with tracking and tracing would also need to be resolved before such a regime
could be entered into and the problems of valuation of monetary benefits outlined in option 3
above also remain. Indeed, the problem of valuation seems to militate against any system for
DSI based upon a bilateral logic. Concerns also surround the likely costs and benefits of
introducing such a complex system. In addition, it would be necessary to assess to what extent
a sui generis copyright-like regime may create equity issues for innovators in the Global South
and how it could be best contribute to biodiversity conservation. For these reasons, a sui
generis system of copyright-like protection might be best encompassed within a hybrid
system which moves away from the bilateral logic of exchange and instead takes a multilateral
approach whereby payment is via a multilateralised digital domaine public payant,
accompanied by a platform focused upon dialogue and learning in direct engagement with a
wide range of stakeholders such as database operators, researchers, innovators and funders (see
option 7). However, as noted above, before anything this complex is embarked upon, extensive
162 See notably the unpublished work by Maximimliano Marzetti on this topic (e.g. PhD Dissertation - The Law
and Economics of the ‘Domaine Public Payant’: A case-study of the Argentinian system). 163 WIPO Report (supra n 160), pp 182-183.
34
studies of cost/benefit, as well as practicality, must be undertaken. As a preliminary step to
this, however, we explore the potential benefits of a multilateral approach in the next option.
35
Option 5: A multilateral fund
In our above discussion (options 1 to 4), we discussed possible options for accommodating DSI
within a bilateral framework. However, we identified a number of practical issues arising from
the application of such bilateralism. We also honed in on important issues of equity associated
with DSI. In essence, if sequences may be common to a number of countries, would application
to DSI of the current bilateral ABS approach support fairness and equity in benefit sharing or
even work at all?164 Accordingly, while blockchain technology, smart contracts and other
mechanisms to monitor and track DSI are theoretically possible, and a copyright inspired
system for DSI could build upon such mechanisms, they do not address issues of fairness and
equity associated with the current bilateral ABS system.165 We therefore need to scrutinise how
a multilateral approach to monetary benefit-sharing could potentially deal with DSI under the
CBD and Nagoya Protocol.
In this section we examine certain options for accruing monetary benefits generated from the
use of DSI obtained from genetic resources into a multilateral fund for them to be subsequently
distributed among Parties.166 We examine a menu of options to multilateralize the sharing of
benefits associated with DSI. It is likely that several of the options discussed here could be
combined as part of a broader system or as part of a phased or stepwise approach to DSI.167
Accordingly, the options discussed below should not be considered as mutually exclusive.
They could also be useful as part of a sectoral approach to DSI and in certain instances, we
draw on existing sectoral approaches for the purpose of inter-regime learning.
It should further be noted that while our focus here is on monetary benefit-sharing, it is also
the case that there is something of a false dichotomy between monetary and non-monetary
benefits, because non-monetary benefits have costs and economic value.168 For instance,
sharing raw data on marine genetic resources as an open access resource still requires the
development of adequate infrastructure and curation; training has costs related to trainees’
travel, precious space/resources on expensive scientific research vessels, trainers’ time, and
scholarships; and the sharing of best practices requires analysis and effective delivery of
information. This is discussed further below (option 6 below).
After exploring the functionality of a variety of funding options based on the experience of
existing multilateral funds, including those responsible for multilateral monetary benefit-
sharing mechanisms (on the side of accruing benefits and that of distributing benefits), we
move on to assess issues pertaining to governance and accountability which should be
considered in respect of any multilateral benefit-sharing fund, providing an assessment based
on the experience of existing multilateral monetary benefit-sharing mechanisms and funds.
Finally, we discuss a possible site of a multilateral fund, exploring the pros and cons of different
arrangements. In this regard, we discuss three possible approaches (1) a multilateral approach
164 See discussion above under ‘core assumptions and summary of findings’. 165 See generally Ruiz Muller 2018 (supra, n 25), 11. 166 Bagley 2016 (supra, n 131) 12. 167 See discussion below at option 7. 168 Ibid.
36
based on Article 10 of the Nagoya Protocol 2) a global fund for biodiversity under the CBD
(and therefore centred under the UN system) and (3) a global fund for biodiversity outside of
the existing ABS system. We conclude this section with a summary and develop a number of
principles which should be considered in the development of such a fund and propose the CBD
as the appropriate site of governance for such a fund, while recognising that a more thorough
review and research process would be needed to understand the costs and benefits of a
multilateral approach, whether under the CBD or elsewhere.
In addition, there are several lessons learnt in multilateral funds in other sectors that can be
built upon in the context of DSI. For instance, disbursement of funds should be done in
accordance with defined criteria agreed in advance with a range of applicable stakeholders, so
that benefit-sharing effectively contributes to the holistic realization of the CBD objectives and
relevant SDGs. In addition, careful consideration should be given to the design of governance
structures to ensure equity and create opportunities for learning and iterative design to make
sure that the fund really responds to beneficiaries’ needs and evolving scientific practices.
On the whole, we favour the establishment of a multilateral fund under the CBD (as part
of a hybrid option, as explored in option 7) because sustainability and predictability of
funding is a precondition for well-functioning benefit-sharing mechanisms.
Before we move on to discuss our proposed multilateral approach to monetary benefit-sharing,
an important caveat is in order. As set out above (option 2 above), the recommendations made
in this study extend to DSI in public databases, with private databases likely to be governed by
the Nagoya Protocol and mutually agreed terms. Accordingly, whereas public databases could
ultimately be governed by the multilateral approach set out below, private databases would
need to be governed by the Protocol. As discussed previously, DSI from public databases,
would benefit for further study in this regard.
a) Funding – accrual of benefits
In establishing any new multilateral benefit-sharing arrangement, the resources required to
operate such a mechanism should be both “sustainable and embedded in the system itself.”169
While these costs will obviously differ depending upon the nature of the arrangement in
question, our examination of potential funding options is underpinned in particular by a
concern for financial sustainability. We are also cognisant of the risk that creating an additional
multilateral fund for DSI/biodiversity more generally could result in competition with other
environmental funds, as well as undermine other – non-monetary – benefits. We therefore take
these concerns into account where relevant.
i. A tax or levy
We may draw inspiration from the literature on traditional knowledge (TK), in respect of which
a number of proposals have been made to deal with shared and widely disseminated TK. An
analogy may be made here with DSI. For TK, a small fixed fee imposed on certain products
169 Ruiz Muller 2013 (supra, n 154) fn 30.
37
such as biotrade products has been proposed with the idea that this could contribute to an
international compensatory fund. This could then be used to fund projects aimed at
conservation and sustainable use in certain areas of the world defined in advance.170
Based on the above, it is thus worth considering whether a tax or levy might be attractive to
deal with DSI. In this regard, Winter has proposed a similar mechanism which he terms a
‘biodiversity charge.’171 Under his proposed scheme, “any remuneration for the sales of a
product, for a patent or breeder’s license or for the rendering of a service would be subject to
the payment of a tax if the value-generating object or activity is based on genetic resources (or
TK).”172 This tax would be paid into a worldwide fund for further dissemination according to
predefined criteria. Such a tax/fee could also cover material considered to be out of scope of
the Nagoya Protocol (i.e. material accessed in all Parties, including those that have not
legislated on access, derivatives, and any information generated from natural resources).
Clearly, the scope of this proposal is broader than that envisaged above in that it applies to
different economic sectors, not only the sale of goods and would apply to all products to which
the ‘value-added’ is generated from a genetic resource (or TK). A further option would be to
extend the tax/levy to include activities such as mining, logging, industrial agriculture, and oil
exploration since these activities cause significant damage to biodiversity.
What is clear from the discussion of the option to impose a biodiversity tax is that considerable
thought would need to go into the appropriate legal vehicle to implement such a charge on a
multilateral basis so as to ensure fairness and equity. Regardless of the scope of such a tax,
there would likely be a need to differentiate between countries, goods and in this case sectors
in the application of such a tax/fee. A binding international treaty would arguably be the first
best option to ensure compliance although of course such a tax would need to be established at
the national level, which presents difficulties in terms of its operationalisation.
An additional issue which needs to be considered is that a general biodiversity or biotrade
product tax, with expansive coverage beyond products derived from DSI, could be framed as
marking a fundamental break in the bilateralism of the CBD/Nagoya regime for all genetic
resources within scope – including physical samples - not just for DSI. On the one hand, some
commentators have noted that this would be potentially beneficial,173 and in one sense a move
beyond the current ABS system is inevitable if one recognises genetic resources as often widely
shared between jurisdictions. On the other hand, this would nevertheless require a fundamental
shift in paradigm which would need to be very carefully considered. It is also the case that
including material outwith the scope of the Nagoya Protocol may somewhat ameliorate this
risk. Additionally, and as mentioned above, there is also the potential to include extractive
170 Ibid, p. 15. 171 G Winter, ‘Knowledge commons, intellectual property and the ABS regime’ in Kamau; EC and Winter G
(eds), Common Pools of Genetic Resources Equity and Innovation in International Biodiversity Law (Taylor &
Francis 2013) 285, 298. 172 Ibid. 173 E C Kamau and G Winter, ‘An introduction to the international ABS regime and a comment on its transposition
by the EU’ (2013) 9 Law, Environment and Development Journal 106, 122.
38
industries within such a tax/levy which would both broaden its scope, as well as expand the
potential revenue stream of any such charge.
While the imposition of taxes/levies is expected to be unpopular and face resistance at the
international level, the imposition of levies within sectors to promote particular societal goals
linked to that sector is a well-established practice. The UK, for example, imposes an ‘apprentice
levy’ on employers with pay bills in excess of £3 million to fund apprenticeship training.174 A
biodiversity levy or tax would not just be another tax for revenue-raising purposes but rather
would be used to fund projects related to the conservation or sustainable use of biodiversity
and thereby contribute to relevant Sustainable Development Goals. Reconceptualising or
reframing the above discussed taxes/fees in this way may help such proposals to gain traction
though measure design will be key to acceptability as well as likelihood of success.
However, while reframing the issue undoubtedly makes conceptual sense, it is also the case
that in administrative terms, a tax/levy scheme would come with considerable challenges which
cannot simply be disregarded. It may be difficult to get multilateral buy-in for the proposition
of a tax, particularly given the costs of administering such a system, and its operation may
impact negatively on research, free exchange and collaboration. Accordingly, while, a tax/levy,
if properly designed, should in principle provide for the financial sustainability of such a
system, it is also the case that the practical operation of such a scheme, together with its impacts
upon particular sectors, needs carefully considered.
ii. A charge on commercial development
Numerous proposals have been advanced in the literature whereby an obligation to pay
royalties would attach to any IP, such as a patent, based upon based on DSI.175 Disbursement
of such royalties would be through a multilateral fund. Disclosure of the country of origin in
respect of patent applications using genetic resources has been implemented in numerous
countries and while certain commentators have raised the question of compatibility with the
TRIPS Agreement, it is notable that no disputes have been brought to the WTO dispute
settlement in respect of this practice.176 Another possibility is to follow the model of Brazil,
whereby a commercialisation charge of 1% is applied to all products “accessed Brazilian
genetic heritage, associated traditional knowledge, or that have commercially exploited final
products or materials derived (there)from.”177
174 See, for example, discussion in Dietz 1990 (supra, n 155), 21. 175 ‘Apprenticeship Levy’ (UK Government – Policy Paper, 2016)
https://www.gov.uk/government/publications/apprenticeship-levy/apprenticeship-levy, accessed December
2019. 175 M Ruiz Muller, ‘Access to Genetic Resources and Benefit Sharing 25 Years on’ (2018) ICTSD Issue Paper
No. 44. Recent developments in WIPO may make this process simpler; see also Rohden et al 2019 (supra, n 46),
44 to 45. 176 Bagley 2016 (supra, n 131) 16. 177 See M Brown, ‘New Brazilian Law on Genetic Heritage gives one year to companies to report on their past
activities having used Brazilian genetic heritage’ (Lexology, 2017)
https://www.lexology.com/library/detail.aspx?g=3f8fb766-b4f0-437d-80ee-ae2ee742f360, accessed December
2019.
39
It should be noted, however, that many genetic resources are shared by more than one
country,178 thereby raising equity concerns although there are ways to address this potential
problem, as was discussed above. One further issue that may be more difficult to address is a
more practical one; securing sustainable funding may be difficult when there will be a time lag
in respect of any commercialisation. Accordingly, payment of royalties based on
commercialisation may, at least initially, yield very little by way funding. By way of illustration
of this point, the ITPGRFA is currently reviewing the operation of its standard material transfer
agreement (SMTA) with a view to enhancing monetary benefit-sharing. This is due to a lack
of commercialisation, which has resulted in a reliance upon donations to fund the Treaty’s
Benefit-Sharing Fund.179 Charges based upon commercial development may therefore not be
the best option to ensure financial sustainability, though potentially this option could be
combined with others from the menu discussed here. A further practical concern may also arise
in that there may arise instances in which collections take place in a country and a direct link
is possible between the sequence and commercialisation. How such scenarios are dealt with
under a multilateral fund would need to be carefully considered.
iii. A subscription fee or one-off payment for access to DSI
A subscription fee or payment for access to DSI is a further potential way in which funds might
be raised for monetary benefit-sharing in respect of DSI. In addition to generating funds, a
subscription system can enhance legal certainty and reduce transaction costs due to removal of
the need to track and trace.180 Under this model, a subscription fee or one-off payment would
be required to access the numerous databases hosting DSI. However, while a number of
specialised databases do require payment,181 comprehensive public databases such as those
within the INSDC are free. Indeed, it is notable the emphasis placed within the INDSC’s policy
upon, “free, unrestricted access to all of the data records in their database.”182 Sectoral
approaches could work here, however, with a subscription system having been proposed in the
ITPGRFA inter-sessional process based upon upfront payments, “on the overall revenue
generated by crop(s) sales. Benefits are contributed to a global common pool in which
accumulated fund support select projects aimed at increasing capacity in member countries,
and achieving the Treaty’s overall objectives of food security and sustainable agriculture.”183
178 Ruiz Muller 2018 (supra, n 25). 179 Ruiz Muller 2018 (supra, n 25), 18. 180 For an overview, see E Tsioumani ‘Consensus Within Reach for Plant Treaty Working Group to Revise ABS
System’ (ISSC, 2019) https://sdg.iisd.org/news/consensus-within-reach-for-plant-treaty-working-group-to-
revise-abs-system/, accessed December 2019. 181 As noted by G Winter, ‘Knowledge commons, intellectual property and the ABS regime’ in Kamau; EC and
Winter G (eds), Common Pools of Genetic Resources Equity and Innovation in International Biodiversity Law
(Taylor & Francis 2013), ‘Traditional Chinese Medicine Database System, which compiles a large number of pre-
existing Chinese Medicines databases. Access is possible after registration and against an up-front payment, which
is used to cover the maintenance of the system. The user does not have to sign an agreement or disclose the aim
of use’ p 288, footnote omitted. Winter 2013, also notes that certain commercial databases such as BIOBASEW'S
TRANSFAC(r) charge a user fee with further restrictions on third party access and rights, 291. 182 Laird and Wynberg 2018 (supra, n 5), 29. 183 E Morgera, ‘Study on Experiences Gained with the Development and Implementation of the Nagoya Protocol
and Other Multilateral Mechanisms and the Potential Relevance of Ongoing Work Undertaken by Other
Processes, Including Case Studies’ (1-3 February 2016) UN Doc UNEP/CBD/ABS/A10/EM/2016/1/2, 20.
40
The design of any subscription fee applied to different sectors of DSI would need to take into
account the different economics underpinning particular sectors and be accompanied by a
nuanced/structured approach to respond to different types and uses of DSI with an emphasis
on supporting scientific cooperation for conservation and sustainable use of biodiversity.
Arguably, subscription fees, if viable at all, would best be discussed within the context of the
hybrid option 7, given its focus on learning and dialogue with stakeholders, and would
additionally require fees to be structured in such a way that students and researchers from the
Global South would either not pay for access, or would pay a reduced fee with a view to
supporting biodiversity conservation. The combination with a global platform for dialogue and
learning outlined in option 7 would also allow for adapting the fee system in light of growing
understanding and multilateral discussion of the different economics underpinning particular
sectors.
iv. Voluntary contributions
Voluntary contributions could be sought from states, database users and other actors (including
the private sector), which could be disbursed multilaterally. The WHO PIP Framework
Partnership Contribution is a potentially instructive in this regard. The Partnership Contribution
is paid by manufacturers of influenza vaccine, as well as diagnostic and pharmaceutical
manufacturers who use the WHO Global Influenza Surveillance and Response System
(GISRS). A questionnaire is sent by the WHO every year to potential contributors with the
funds then allocated to capacity building, pandemic response and maintenance of the PIP
Framework.184 A similar questionnaire to companies making use of publicly available
databases could seek donations to fund capacity building initiatives and biodiversity activities.
Governments could also be asked to contribute on a voluntary basis.
There are several counterarguments to the use of voluntary contributions on their own. First, it
is doubtful that the financial sustainability of a system can based solely upon donations. By
way of example, the Intergovernmental Science-Policy Platform on Biodiversity and
Ecosystem Services (IPBES) is severely underfunded.185 In that connection, there is also a
concern that the establishment of a new funding stream based on donations could result in
funding being pulled away from existing institutions. Second, voluntary donations are
unpredictable and effectively place the very existence of the system in the hands of donors,
thereby inherently raising equity and fairness concerns.
v. (GREEN)
Given doubts over the sustainability of certain of the options discussed above, more innovative
funding ideas may need to be pursued. A possible option here includes drawing on the Global
184 ‘Influenza – PIP Partnership Contribution’ (WHO, n.d.)
https://www.who.int/influenza/pip/partnership_contribution/en/, accessed December 2019. See discussion in M F
Rourke et al. ‘Access and benefit-sharing following the synthesis of horsepox virus’ (2020) Nat Biotechnol
https://doi.org/10.1038/s41587-020-0518-z. 185 G Futhazar, and others, 'The IPES, Biodiversity and the Law: Design, functioning and perspectives of the
Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services' in Charles R McManis and
Burton Ong (eds), Routledge Handbook of Biodiversity and the Law (Routledge, 2017), Chapter 27.
41
Fund for AIDS, TB and Malaria’s (RED) programme186 which receives funding for HIV/AIDS
specific programmes from goods sold under the (RED) badge.187 Brands involved in (RED)
include Apple, Starbucks, Beats by Dr Dre and Alessi. $600 million has already been raised
from this programme188 and there may be attractions in pursuing a biodiversity equivalent of
(RED). Accordingly, to the extent to which any multilateral benefit-sharing fund linked to DSI
converges into a broader fund funding projects linked to objectives such as conservation and
sustainable use, there may be merit in pursuing the introduction of a (GREEN) programme for
biodiversity to ensure diversity, and hence sustainability, of funding sources. Such a
programme would be applied to a subset of products sold on consumer markets and would
therefore not attempt to link with DSI-derived products, at least not in an explicit sense. A
(GREEN) fund could also have a wider purpose and act more broadly as a biodiversity resource
mobilisation tool, rather than seeking solely to address DSI.
vi. Biodiversity bonds
Long-term financial sustainability, as well as diversity of funding sources, may also be
achieved through the use of financial instruments such as a bond issue. For example, Gavi, the
Vaccine Alliance’s innovative International Finance Facility for Immunisations (IFFIm) allows
‘vaccine bonds’ – debt instruments – to be sold to investors.189 Donors are able commit to
financing over the longer term190 but funds are able to be raised in the short term.
A biodiversity bond could be issued and based on long-term financial pledges of donor states.
Alternatively, a biodiversity bond could provide financing in the short to medium term until
fees from commercialisation are realised, if this option is pursued.191 The risk profile of such a
bond issue, based upon long-term commercialisation hopes, is likely to be quite different to
that of a bond based upon donor commitments and this may impact upon the appetite of
investors for such a product. Furthermore, while the IFFIm works well192, other examples of
bonds being used to fund global issues such as the World Bank’s Pandemic Emergency
Financing Facility have been the subject of heavy criticism that it, “serves private sector
interests at the cost of global health security”193 so bond design will be crucial here. It is notable
that there is growing appetite to use bonds to secure finance to tackle global issues, with the
186 ‘Red’ (The Global Fund, n.d.) https://www.theglobalfund.org/en/private-ngo-partners/resource-
mobilization/red/ accessed December 2019. 187 See discussion S Sekalala, Soft Law and Global Health Problems: Lessons from Responses to HIV/AIDS,
Malaria and Tuberculosis (Cambridge University Press, 2017) 199. 188 Figure as of July 2019; see ‘Red’ (The Global Fund, n.d.) https://www.theglobalfund.org/en/private-ngo-
partners/resource-mobilization/red/ accessed December 2019. 189 K A Klock, 'International Public-Private Partnerships as Part of the Solution to Infectious Disease Threats:
Operational, Legal, and Governance Considerations' in Sam F Halabi (eds), Global Management of Infectious
Disease After Ebola (OUP, 2016) Chapter 9, 170. 190 See also discussion in L Gostin, Global Health Law (Harvard University Press 2014), Chapter 5. 191 Indeed, there has been a substantial increase of late in the so-called ‘green bond’ market: ‘Green Bonds’ (CBD,
n.d.) https://www.cbd.int/financial/greenbonds.shtml, accessed December 2019. 192 See discussion in Gostin 2014 (supra, n 190), 156 – 157. 193 B Brim and C Wenham, ‘Pandemic Emergency Financing Facility: struggling to deliver on its innovative
promise’ (2019) 367 BMJ I5719.
42
Crop Trust currently considering issuing Food Security Bonds194 to ensure the financial
viability of its trust fund.
b) Funding – disbursement of benefits
Disbursement of benefits under a potential multilateral benefit-sharing regime for DSI may fall
under at least two potential conceptual arrangements. The first is what can be termed a
compensatory liability regime. As we will see, under such a regime, an attempt would be made
to correspond the payments of benefits to providers of DSI195, although benefit-sharing would
not be done bilaterally but through a multilateral fund, thereby reducing transaction costs. The
linking of payments to provider countries could take a number of forms and would not
necessarily involve tracking DSI along the entire value chain. Such matching of benefits could
also take into account the transboundary nature of genetic resources so that benefits could be
shared between a number of countries sharing a specific genetic resource.
By contrast, under the second arrangement, the link between provider countries and eligibility
for monetary benefits would be replaced by a more general recognition of the ‘value’ of DSI –
as well as the contribution of provider countries to conservation – and the need for monetary
benefit-sharing. The second arrangement would in some ways involve a simplified architecture
and would likely support a project-based approach to benefit-sharing according to pre-defined
criteria.
Certain of the funding options explored above could be structured to fit within either of these
arrangements though certain more generalised funding suggestions such as donations as well
as creation of a (GREEN) brand more clearly fit within the second arrangement. A hybrid of
each of these arrangements is also possible. It is therefore to be emphasised that much like the
options for accrual of benefits discussed above, these arrangements should not be seen as
mutually exclusive.
Finally, we do not wish to present the idea that there should be a ‘one-size-fits-all’ approach
for a multilateral fund to address monetary benefit-sharing in relation to DSI. Even if this were
possible, there are immense variations in terms of the economics of different sectors and
(sub)sectors that need to be considered. More concretely, these variations, and the extent to
which they require different responses, mandate in favour of an in-built learning dimension
leading to iterative approaches to implementation (to be balanced against realistic approach for
users and legal certainty). The idea of an in-built learning approach to support iterative
approaches to benefit-sharing is presented in option 6 below, and the idea of a multilateral fund
and a multilateral platform (option 6 below) can be combined in the hybrid option (option 7).
i. Compensatory Liability Regime
194 See Intergovernmental Technical Working Group on PGRFA, ‘Report from the Global Crop Diversity Trust’
(FAO, 2018) http://www.fao.org/3/CA0107EN/ca0107en.pdf, accessed December 2019, 13. 195 As we see below, however, in respect of globally disbursed sequences/species, no such ‘matching’ of payments
would take place and instead, benefits would flow into a multilateral fund.
43
As should be clear from the name, a compensatory liability regime is a system based on liability
rather than property rights.196 Whereas a property regime ‘vests exclusive rights in owners’, a
liability regime operates according to a ‘use now, pay later’ principle whereby use of the
resource is permitted without explicit permission of the rights holder, provided compensation
is paid, although limits may be imposed on the use of the resource.197 Under such a regime,
DSI would be recognised as semi-commons (see also hybrid option 7).198
An example of a compensatory liability regime has been suggested by Ruiz Muller whereby
benefits are accrued based on the use of DSI in patents and disbursed to countries hosting the
species from which the genetic information was derived.199 He proposes utilisation of a
mechanism to determine geographical distribution of genetic resources such as the
International Barcode of Life Initiative could be utilised to assist in determining fund
distribution entitlements.200 For so-called globally disbursed species and sequences which
make up the greater percentage of species and sequences accessed for research and
development, there would be no payment to individual countries with royalties used instead to
fund the system.201202 This may in all events end up being a significant proportion of the overall
total. MAT/PIC would still be relevant to the sharing of non-monetary benefits203 in respect of
DSI extracted from genetic resources from provider countries.
The scheme outlined above has also been referred to as one centred on ‘bounded openness’204
whereby genetic resources would continue to flow freely but the operation of such a scheme
would be bounded in that it would not be free of cost.205 The proposals outlined above which
are based on the payment of royalties into a multilateral fund based on compensation for use
of DSI upon, for example, commercialisation would fall broadly under this category.
As should be obvious from the above discussion, the criteria by which funds are distributed
under a compensatory liability regime will ultimately be a strong determinant of its success.
Clear and transparent criteria will need to be developed in advance and in conversation with
relevant actors. Such an arrangement will undoubtedly be complex and may potentially raise
equity concerns regarding the capacity of relevant actors to contribute to the conversation.
Furthermore, where funding is limited this may cause competition between parties, particularly
196 See discussion in G Dutfield, ‘Protecting Traditional Knowledge and Folklore: A review of progress in
diplomacy and policy formulation' (2003) UCTAD-ICTSD Project on TRIPS and Sustainable Development Issue
Paper 1, 9. 197 Ibid, 40. 198 See generally ibid. See also J H Reichman and T Lewis,’ Using Liability Rules to Stimulate Local Innovation
in Developing Countries: Application to Traditional Knowledge’, in K E Maskus and J H Reichman (eds),
International Public Goods and Transfer of Technology Under a Globalized (CUP, 2005), 337, 349. 199 Ruiz Muller 2018 (supra, n 25). In the context of TK, see also Ruiz Muller 2013 (supra n 154). 200 Ruiz Muller 2018 (supra, n 25), 14. 201 Vogel et al 2017 (supra, n 13), 378 to 379, building on the work of Oldham et al. 202 Ruiz Muller 2018 (supra, n 25), 14. 203 Ruiz Muller 2018 (supra, n 25), 18. 204 There is extensive literature on the application of the concept bounded openness, see for example Vogel et al
2017 (supra, n 13). 205 Ruiz Muller 2018 (supra, n 25), 2, building on Vogel et al 2017 (supra, n 13).
44
where they have unequal capacities. These points are discussed more fully below where
existing international practice in fund disbursement is considered.
ii. A general (biodiversity) fund
The second form of disbursement, which is not based on liability regime, would involve
payment to and from general fund. This fund would likely be utilised to fund specific projects
or programmes based on defined criteria, linked to the CBD objectives and relevant SDGs.
Many international funds provide, at least among others, for project-based funding. The Global
Environment Facility (GEF) of the World Bank, for example, can cover the incremental costs
of projects,206 whilst the ITPGRFA’s Benefit-Sharing Fund primarily provides project-based
grants.207 Project-based funding alone, however, may raise questions of equity when funding
is limited and thus causes competition between applicants which may have unequal
capacities.208 Issues can be exacerbated when financing is loan-based, generating debt for those
seeking to address problems that may not directly relate to their own doing or which efforts
may provide global benefits.209
More comprehensive funding strategies may take a more programmatic approach. Funding, in
this regard, may be of an enabling nature targeted to the very development of strategic
programmes, sometimes mandated under a relevant treaty, such as a national action plan, or
for the effectuation of such a strategic programme. The Global Fund to Fight AIDS,
Tuberculosis and Malaria (GFATM)210 provides an example of a fund that seeks to combine
both strategic financing, for example, for the implementation of national strategic health plans,
and project- or activity-based grants, notably with regard to specific communities, in a single,
national application.211
Applied to the current context, important questions would need to be asked in advance of
establishment of such a fund as to how monies are distributed. An iterative process, drawing
on experience of other funds such as those discussed above would ideally be engaged in to
develop criteria for the disbursement of funds, whether these are disbursed at a project or
programmatic level. Specific selection criteria for funding will depend on the objectives of the
fund, and experience at international level suggests that this is often closely linked to the
206 ‘The Global Environment Facility. Investing in Our Planet’ (The Global Environment Facility)
https://www.thegef.org/, accessed November 2019 207 ‘Benefit-Sharing Fund’ (FAO) http://www.fao.org/plant-treaty/areas-of-work/benefit-sharing-
fund/overview/en/, accessed November 2019. 208 Morgera 2018 (supra, n 42), 65; S Louafi, Reflections on the Resource Allocation Strategy of the Benefit
Sharing Fund (Swiss Federal Office for Agriculture, 2013). 209 See in this regard notably criticism of previous climate funds like the World Banks’ Climate Investment Funds
(CIF) B Wu, ‘Where’s the Money? The Elephant in the Boardroom’ (Huffpost 2013)
https://www.huffpost.com/entry/wheres-the-money_b_3499523, accessed November 2019. 210 ‘The Global Fund’ (The Global Fund) https://www.theglobalfund.org/, accessed November 2019. 211 Modular Framework Handbook (The Global Fund, 2019). Note that the Handbook contains a very
comprehensive list of ‘modules’ that could be funded by the Global Fund, organised under different ‘intervention
packages’ that also include lists of indicators of success.
45
overarching treaty and is sometimes further specified through different priorities, focal areas
or funding windows. These are very much essential for the overall success of the fund.
Illustrative of the above point is the GEF requirement that financial support for projects should
fall within five different focal areas.212 Support will only be provided for the “incremental costs
of projects”: that is, the costs, “associated with transforming a project with national benefits
into one with global environmental benefit”.213 The ‘incremental cost’ criterion is, however,
rather ambiguous and its interpretation politicised, with calculations being ‘endlessly
contentious’.214 A clear lesson to be taken from this is that where the inclusion and
interpretation of such concepts impact on the disbursement, timing and amount of funding, the
potential underlying power asymmetries will have to be given careful consideration when
deciding on the aims and specificities of a multilateral fund. Fund design must also ensure
smaller groups and communities are able to access funds.
Finally, consideration should be given to support for non-monetary benefit-sharing215 activities
such as technology transfer and staff training. Indeed, the environmental funds listed above
also often include opportunities for such technical assistance, sometimes directly linked to
Treaty provisions on capacity building and technology transfer, as in the case of the
ITPGRFA.216 Worth mentioning in this regard is the ‘Readiness and Preparatory Support
Programme’ under the Green Climate Fund (GCF), which, primarily, aims to strengthen the
institutional capacities of National Designated Authorities or direct access entities to
effectively and efficiently engage with and access the GCF funding itself.217 This thus includes
assistance for the development of national arrangements for consideration and facilitation of
funding proposals, for training of staff for project and programme development and support for
stakeholder engagement,218 important examples of non-monetary benefit-sharing.
In regard to the above, any such fund would likely benefit from better understanding of the
interface with non-monetary benefit-sharing such as strengthening research institutions and
advancing conservation activities and conservation science in high biodiversity regions. The
multilateral identification of gaps in the current landscape of international funds and of actual
needs in biodiversity-rich countries could be supported by the global platform for dialogue
212 Biodiversity, climate change, land degradation, international waters, chemicals and waste: GEF Secretariat,
'Gef-7 Replenishment. Programming Directions.' (2018) GEF/R.7/19. 213 ‘Incremental Costs’ (Global Environment Facility 2007) https://www.thegef.org/documents/incremental-
costs, accessed November 2019; also J Gupta, ‘The Global Environment Facility in Its North‐South Context’
(1995) 4 Environmental Politics 19, 25. 214 Z Young, A New Green Order? The World Bank and the Politics of the Global Environment Facility (Pluto
Press 2002), 149. 215 Though see discussion below option 6 and 7 on the false dichotomy between monetary and non-monetary
benefits. 216 E Tsioumani, ‘Beyond Access and Benefit-Sharing: Lessons from the Emergence and Application of the
Principle of Fair and Equitable Benefit-Sharing in Agrobiodiversity Governance’ in Fabien Girard and Christine
Frison (eds), The Commons, Plant Breeding and Agricultural Biotechnologies: Challenges for Food Security and
Agrobiodiversity (Routledge 2018). 217 ‘Readiness Support’ (Green Climate Fund) https://www.greenclimate.fund/gcf101/empowering-
countries/readiness-support, accessed November 2019. See more broadly on the role of national entities in the
GCF system: UNFCCC, 'Governing Instrument for the Green Climate Fund' (2011) FCCC/CP/2011/9/Add.1. 218 GCF Handbook. Decisions, Policies, and Frameworks (2019), 408.
46
discussed in option 6 below. Useful features for the platform can also be derived from the
discussion of the governance of international funds below.
c) Governance, accountability and decision making
Any multilateral benefit-sharing fund would be required to establish a governance system for
decision making in respect of disbursement of funds. Here, existing international practice can
be drawn on, in order to distil important lessons for the present context. With regard to decision-
making on funding applications, existing multilateral funds rely on a central governing board
with representatives. Numbers of members vary between 7 (ITPGRFA’s Benefit-Sharing
Fund) and 32 (Global Environment Facility) and primarily include government representatives
with at least an equal number of representatives from developing and developed countries (see
Annex below). Additionally, the Global Agriculture and Food Security Program’s (GAFSP)
Steering Committee originally also included representatives from the World Bank and
supervising entities (e.g. FAO, IFAD, IFC),219 whilst the Global Fund’s Board of 20 (voting)
members includes seats for major national donors as well as developing countries. But it also
notably includes representation from an NGO from both the developing and developed world,
a representative of someone living with the diseases associated with the fund and the private
sector.220 UNAIDS, the WHO, the World Bank and a Swiss member (since that is where the
Global Fund is incorporated221) have non-voting advisory seats.222
As executive bodies have the final say on funding applications, the power balances that follow
from its structures and decision-making procedures will have to be given careful consideration.
Equal country representation is in this regard not necessarily sufficient, if other factors –
including elements of funding discussed above – are geared to tip the scale in one direction.
This can be illustrated by GEF, whilst despite 56% of representatives from developing
countries or economies in transition and with voting done by consensus, in the past, negotiators
and others actors have expressed that they felt that there was frequently “no alternative but to
agree” with donor countries.223
In contrast to the GEF, the GFATM Board must first try to reach decisions by consensus.224
Where a vote is taken, a weighted two-thirds majority must be reached comprising the group
of donor and private seats, as well as the group consisting of the NGO seats, the developing
country seats and the representative who is a person living with one of the diseases covered by
the Fund.225 Such a model is clearly designed to both “broaden the deliberative process and to
safeguard stakeholder participation.”226 This dedication to broad stakeholder participation
helps to ensure equity in the way in which decisions are made by the Global Fund’s board.227
219 Framework Document for a Global Agriculture and Food Security Program (GAFSP) (World Bank Group,
2009), 34; although these entities are still part of GAFSP they do not have any voting power. 220 ‘Board. Members’ (The Global Fund) https://www.theglobalfund.org/en/board/members/, accessed
November 2019. 221 On the reasons for this, see Klock 2016 (supra, n 189), 160. 222 Sekalala 2017 (supra, n 187) 197. 223 Gupta 1995 (supra, n 213) 20. 224 Sekalala 2017 (supra, n 187) 197. 225 Ibid. 226 Ibid. 227 Ibid.
47
Such multi-sectoral stakeholder participation is further enhanced by the availability of a
partnership forum as well as a Global Online Forum.228 Worth mentioning in this regard is
Gavi, the Vaccine Alliance, whose board includes an equal balance of donor and recipient
countries as well as three intergovernmental organisations – the WHO, UNICEF and the World
Bank – together with representatives of vaccine manufacturers from both the developed and
developing world.229 Other board seats are reserved for the Gates Foundation, as well as
representatives of civil society. Further seats are allocated based on the needs of the
organisation230 and it is notable that Gavi is recognised as one of the most transparent agencies
in the world.231 While Gavi’s Board focuses on wider strategy, it is nevertheless an interesting
institution for its emphasis on representation from a wide array of constituencies as well as
transparency.
The governing board will, for its decision-making, also be likely to be supported by an advisory
and/or technical body. Of particular inspiration can be in this regard the structure provided by
the Global Fund to Fight AIDS, Tuberculosis and Malaria (GFATM), which uses both a
Technical Review Panel (TRP) of independent experts to evaluate the technical merit of
proposals, and a Grant Approvals Committee to make funding recommendations based on the
Panel’s opinion and a proposal’s wider strategic value.232 The Technical Review Panel in
particular has been commended for being able to direct funding in the direction of countries
most in need, without ex ante allocation, whilst flagging capacity concerns (and language
barriers) where relevant and promoting substantial learning, thereby having been held to
potentially provide inspiration for other (incl. environmental) multilateral mechanisms.233
Moreover, the GFATM has also been put forward as an example of largely successful
integration of local, bottom-up knowledge (through Country Coordination Mechanisms) and
independent, technical expertise (through the Technical Review Panel) in decision-
making.234
Questions will need to be raised and answered as to how funds can be accessed, notably who
is able to apply for funding and who decides on the application. In this regard, significant
differences can be seen when comparing institutional structures within existing multilateral or
global funds. With regard to potential applicants, the ITPGRFA’s Benefit-Sharing Fund seems
to position itself on one side of the spectrum, by focusing on direct access for State Parties, or
any legal or natural person, including gene banks and research institutions, farmers and
farmers’ organisations.235 Despite a helpdesk providing assistance for the preparation of
228 Ibid, 208 229 Klock 2016 (supra, n 189), 170. 230 Ibid. 231 Ibid, 174. 232 ‘Technical Review Panel. Overview’ (The Global Fund) https://www.theglobalfund.org/en/technical-review-
panel/, accessed November 2019. 233 G Schmidt-Traub, ‘The Role of the Technical Review Panel of the Global Fund to Fight Hiv/Aids, Tuberculosis
and Malaria: An Analysis of Grant Recommendations’ (2018) 33 Health Policy Plan 335. 234 L Van Kerkhoff and N A Szlezak, ‘The Role of Innovative Global Institutions in Linking Knowledge and
Action’ (2016) 113 PNAS 4603, although the authors also find that some countries have succeeded better than
others in maintaining ‘country ownership’ of the process and outcomes than others. 235 FAO, 'Report of the Third Session of the Governing Body of the International Treaty on Plant Genetic
Resources for Food and Agriculture' (2009) Resolution 3/2009.
48
proposals, concerns have been raised of capture of the process by well-established groups and
the inability of farmers – the primary target group under the Treaty236 – to reach the
international level through complex procedures.237 On the other end of the spectrum is the
Global Fund to Fight AIDS, Tuberculosis and Malaria, where a separate national committee
called a Country Coordination Mechanisms is tasked with the submission of comprehensive
proposals.238 These include representatives from various sectors: multilateral or bilateral
agencies, nongovernmental organisations, academic institutions, faith-based organization, the
private sector and people living with the diseases,239 with this inclusive approach being helped
by the fact that funding is primarily demand- rather than supply-driven. Nonetheless, issues
have occurred when civil society representation did not always reach recommended (40%)
quota,240 or when a heavy presence from donor countries could be felt within the Country
Coordination Mechanisms.241 In response to this, the GFTAM has reviewed its grant
architecture to ensure more by way of country ownership as well as enhanced NGO
involvement.242 This shows the need for an iterative approach to the development of these
funds, which allows to respond to what is learnt in implementation and the benefits of
reflexive and self-critical approach has led to strengthened Country Coordination
Mechanisms with greater sectoral and societal engagement.243
An example of a more hybrid approach is GEF’s Small Grants Programme which has been held
to work fairly well, and which can be directly accessed by community-based organizations and
non-governmental organizations with assistance from a National Coordinator. Although the
scheme follows GEF’s focus on global benefits, it aims to do so through community-based
initiatives and actions.244 There have been examples in which the GEF Small Grants
Programme has been more tightly linked to multilateral processes, such as under the
Minamata Convention. These cases could be studied in more detail, considering that the
GEF is already the funding mechanism for the CBD and the Nagoya Protocol, with a view
to assessing in what ways they could contribute to integration of local, bottom-up
knowledge and independent, technical expertise, as well as greater sectoral and societal
engagement with a view to supporting participatory and iterative learning around DSI,
the CBD objectives and their contributions to the SDGs. Whereas other multilateral
mechanisms have also opted for more hybrid approaches, it follows from the above that equity
236 Article 13.3 ITPGRFA. 237 Tsioumani 2018 (supra, n 216); S Louafi, Reflections on the Resource Allocation Strategy of the Benefit
Sharing Fund (Swiss Federal Office for Agriculture, 2013). 238 The Global Fund to Fight Aids, Tuberculosis and Malaria. The Framework Document (The Global Fund,
2001), 94. 239 ‘Country Coordinating Mechanism. Overview’ (The Global Fund) https://www.theglobalfund.org/en/country-
coordinating-mechanism/, accessed November 2019. See more broadly on stakeholder participation in the context
of another funding mechanisms (GEF) discussed in this section, for example, GEF Council, 'Policy on Stakeholder
Engagement' (2017) SD/PL/01. 240 Country Coordinating Mechanisms. Governance and Civil Society Participation (The Global Fund, 2008), 7. 241 C Clinton, ‘The Global Fund: An Experiment in Global Governance’ (University of Oxford 2014), 319. 242 Sekalala 2017 (supra, n 187) 200 – 201. 243 Ibid. 244 See also table below and, for example, the GCF Accredited Entities under the GCF and the Operational Focal
Points under the GEF.
49
in access opportunities relies upon the abilities of institutions and individuals and the
availability of adequate capacity support.
Overall, it can be concluded that:
The Global Fund to Fight AIDS, Tuberculosis and Malaria (GFATAM) provides a
useful starting point for the development of a multilateral/global fund, notably because
of its Country Coordination Mechanisms and Technical Review Panel institutional
structures.
To make it a better fit for the biodiversity context, efforts could primarily be focused
on further integration of local and indigenous knowledge in decision-making
procedures, learning from the experience of the GEF’s Small Grants Programme and
the challenges encountered under the ITPGRFA Benefit-sharing Fund. Active
involvement of those on the ground is necessary to realize the benefit-sharing rationale
‘to share’ (implying agency, rather than of the passive enjoyment of benefits).245
Gavi, with its innovative approach to financing in the form of the IFFIm, together with
its commitment to transparency, may also provide something of exemplar for
development of a multilateral or global fund for biodiversity.
It is also notable that both GFATM and Gavi are public-private partnerships,246
created because, ‘existing international mechanisms plateaued in their impact.’247
While both organisations are not without criticism,248 they nevertheless are considered
to, “create opportunities for consensus-building and resource mobilisation,” through
their use of, “(n)ovel forms of shared decision-making and operations”… “which give
both private and public actors a shared space to structure and build solutions to
problems … that had previously appeared intractable.”249 By extension, public-private
partnerships may perform important ‘regime straddling’ roles and be able to work
within polyglot networks comprised of a “mix of activities, goals and purposes.”250
This is in contrast to traditional intergovernmental organizations, which may often act
as hosts to regime shifting by states and other actors.251 Public-private partnerships
may also bring sectors and actors with very different worldviews together, in an effort
to transform transnational norms.252 The potential of public-private partnerships is
discussed further below.
d) Sites of governance
245 Morgera 2018 (supra, n 42), 57. 246 Sekalala 2017 (supra, n 187), 196. 247 Klock 2016 (supra, n 189), 175 248 See, for example discussion in Gostin 2014 (supra n 190), Chapter 5. 249 Klock 2016 (supra, n 189), 175 250 M Chon, 'PPPs in global IP (public private partnerships in global intellectual property' in Graeme B. Dinwoodie
(ed) Methods and Perspectives in Intellectual Property (Edward Elgar Publishing, 2013), Chapter 11, 283 251 L R Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property
Lawmaking’ (2004) 29 Yale Journal of International Law
available at https://digitalcommons.law.yale.edu/yjil/vol29/iss1/2, accessed December 2019. 252 Chon 2013 (supra, n 250), 283. Please note there is a vast literature on public-private partnerships to achieve
sustainable development. See, for example, Philipp Pattberg and others (eds), Public–Private Partnerships for
Sustainable Development: Emergence, Influence and Legitimacy (Edward Elgar, 2012)
50
(At least) three potential sites of governance may be identified in respect of the establishment
of a multilateral fund.
iii. Nagoya Protocol
The first would involve the establishment of a global multilateral benefit-sharing mechanism
pursuant to Article 10 of the Nagoya Protocol. Indeed, there has been extensive discussion in
the literature on the potentially useful utility of Article 10 to resolve the DSI quandary,253 which
relates to the fact that, “some third party commercial uses of genetic information from publicly
accessible databases can be analogised to a transboundary situation or a situation where it is
not feasible to get consent.”254 In essence, a transboundary situation may eventuate when a
“gene, a metabolite, a design from biomimicry … is diffused over species and the species, over
jurisdictions.”255 It could be established as a compensatory liability regime, a broader general
fund or a hybrid. There are significant challenges, however, confronting the Nagoya Protocol
(including continued diverge of views on Article 10, more limited membership than the CBD),
so it may not be preferable to establish such a fund under its auspices.
iv. CBD
An alternative approach would be to create a biodiversity fund under the CBD with
contributions from different sources, including for the use of various components of
biodiversity. While aiming to address the issue of monetary benefit-sharing for DSI under the
Nagoya Protocol, its scope would be broader and would be largely structured as a broader
general fund, though that is not to say that compensatory approaches could not be included as
a hybrid. This would arguably go beyond the scope of Article 10.256 Several provisions under
the CBD could contribute to provide the legal basis of the establishment of such a fund and
contribute to a reflection by CBD Parties on more effective and integrated implementation of
its three objectives.
Both the creation of a biodiversity fund under the CBD and a DSI global multilateral benefit-
sharing mechanism would involve the creation of additional institutional machinery, with
associated costs attached. Furthermore, for the proposed CBD biodiversity fund, concern may
arise that it would not directly address the DSI issue. Instead, by accommodating different
negotiating positions, it could actually result in a lack of legal certainty as well as potentially
‘waste’ institutional resources and risk of competition with other international biodiversity
funding sources.
v. Global Fund for Biodiversity as a public-private partnership
A final approach would be to build on the model of the Global Fund to Fight AIDS,
Tuberculosis and Malaria (GFATM) discussed above and construct a funding body outside of
the existing ABS space. This could be called the Global Fund for Biodiversity – GFBio. The
rationale for the creation of such a fund outside of the existing ABS space is similar to that of
253 See also E Morgera, ‘What to expect on benefit-sharing from the upcoming 2018 UN Biodiversity Conference
(Part II: Nagoya Protocol)’ (BeneLex Project, 2018) https://benelexblog.wordpress.com/tag/nagoya-protocol/,
accessed December 2019. 254 Bagley 2016 (supra, n 131), 12. 255 Vogel et al. 2017 (supra, n 13), 383. 256 Though this is of course somewhat of a contested point.
51
the GFATM; that “existing international mechanisms plateaued in their impact.”257 The
proposed fund could be financed by certain of the mechanisms discussed above, but could also
ensure more by way of financial certainty by drawing funding from more innovative financial
mechanisms such as bonds underwritten by supportive governments. As noted above,
inspiration could be drawn from Gavi’s International Finance Facility for Immunisation under
which bond holders are paid back over the longer term by donors. It is anticipated that
governments hosting industries particularly reliant on DSI would act as donor countries in the
first instances. A bond issue such as that proposed above could utilise the World Bank or the
FAO258 as a treasury manager and would fit within the growing discourse promoting ‘ethical
investing.’
The proposed GFBio could be structured as a public-private partnership, thereby allowing for
flexibility in its construction, as well as speed in its establishment. The GFTAM was, for
example, established over a six-month period.259 Relevant intergovernmental organizations
could be invited to participate as board members. Funding would be disbursed in accordance
with priorities agreed by a broad range of stakeholders and thereby echo the GFTAM’s
emphasis on partnership and bottom-up approaches. The GFBio could also incorporate
elements of option 6 below in terms of acting as a forum for dialogue, oversight and priority
setting for DSI and could give a wide array of constituencies a voice in its operation and
governance. This may help to move us away from some of the more ‘silo-ed’ positions which
currently surround DSI and potentially promote the underpinning logic of benefit-sharing as
an “iterative process, rather than a one-off exercise, of good-faith engagement among different
actors that lays the foundation for a partnership among them.”260 Accordingly, while the GFBio
may appear at first site to offer opportunities for monetary benefit-sharing without confronting
‘head on’ the issue of DSI261 under the CBD or the Nagoya Protocol, it could act as a forum
for dialogue and priority setting in this regard. This would potentially help to address a “core
challenge for new forms of cooperation” which is their ability to take, “into account of external
stakeholder interests. Coalitions of the willing may be created. Yet, these may also affect
(directly or indirectly) outsider state or private actors.”262
vi. Fragmentation and the CBD
While the public-private partnership model clearly has advantages, it must also be recognised
that such a model creates significant risks of “fragmentation … of state-centric legal
frameworks and a corresponding shrinkage of public goods” provision.263 By extension,
countries with limited resources may find it difficult to be active across an ever-increasing
range of international structures.264 In this regard, establishment of a GFBio would raise
257 Klock 2016 (supra, n 189), 175. 258 ‘Benefit-Sharing Fund’ (FAO) <http://www.fao.org/plant-treaty/areas-of-work/benefit-sharingfund/
overview/en/>, accessed November 2019. 259 See discussion in Sekalala 2017 (supra, n 187), Chapter 7. 260 See Morgera 2018 (supra, n 42). 261 See generally ibid. 262 J Pauwelyn, R A Wessel and J Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in
International Lawmaking’ (2014) 25 (3) European Journal of International Law 733, 752 and 738. 263 Chon 2013 (supra, n 250), 296. 264 Ibid.
52
significant concerns with respect to the potential dilution of authority of the CBD on the
international sphere. At a time when biodiversity most needs protecting, erosion of the
influence of the CBD appears a misstep. Indeed, the CBD offers the treaty objectives under
which such a fund should operate.
Accordingly, the establishment of a fund under the CBD offers significant advantages from an
international law perspective, though the lessons learned above with respect to the importance
of facilitating dialogue, oversight and involvement of a range of constituencies should be borne
in mind when creating such a fund such as:
the development of institutional structures such as the Country Coordination
Mechanisms and Technical Review Panel for the operation of the Global Fund to Fight
AIDS, Tuberculosis and Malaria (GFATAM)
more innovative financing mechanisms such as a bond issue, drawing on the
experiences of Gavi, the Vaccine Alliance to ensure short-term financial sustainability
that would also nurture trust among various actors;
governance with relevant ‘constituencies’ such as database managers, developing
countries, the scientific community and indigenous communities represented in its
decision-making processes, drawing inspiration from the GFATM .
The key idea here would be to give both “private and public actors a shared space to
structure and build solutions to problems … that had previously appeared
intractable.”265 Dialogue with a range of affected stakeholders is therefore an important
underpinning principle and indeed, we explore this option below (option 7) where we
propose a so-called hybrid approach whereby a multilateral fund established under the CBD
is accompanied by a multilateral platform for dialogue, learning, oversight and priority-
setting.
265 Klock 2016 (supra, n 189), 175.
53
Option 6: A multilateral platform for benefit-sharing
Whereas the analyses of options 5 have focused primarily on a multilateral fund as a monetary
benefit-sharing option, this option explores a more principled approach to ensure that available
resources, regardless of the way they are generated, are targeted in such a way to ensure fairness
and equity in relation to benefit-sharing.266 Such a principled approach is mainly concerned
with establishing a multilateral platform for dialogue, oversight and priority-setting around DSI
to support global partnerships on scientific cooperation for conservation and sustainable use.
The platform could allow approaching the DSI issue ‘from the side’, moving beyond the
dichotomy inherent in the perception of monetary versus non-monetary benefits, definitions
and the subject-matter scope of the CBD, in order to concentrate on dealing with the actual
barriers to the realization of equity and fairness in benefit-sharing. In this regard, this option
builds upon and implements existing obligations and opportunities, notably on information-
sharing, capacity-building, technology transfer and scientific cooperation as forms of benefit-
sharing. The creation of a multilateral platform is a recommended option, that is both
compatible with a multilateral fund (option 5 above) and can respond to the shortcomings
identified in previous options if it is implemented as part of a hybrid solution, discussed as
option 7 below.
a) Beyond monetary and non-monetary benefits
A platform for coordination of efforts and multilateral cooperation would allow us to beyond
narrow debates on the nature and types of benefits that can and should be shared. Such a
platform would notably also allow us to move beyond the traditional - and in our view false –
distinctions typically made between monetary and non-monetary benefits. In this regard, an
argument that is often brought against the formalisation of benefit-sharing arrangements
regarding use of DSI, and of monetary benefits in particular, is that publication of sequences
in open access databases already represents a significant form of non-monetary benefit-sharing
as it allows anyone, including researchers in provider countries and the Global South, to use
the information.267 This argument, however persistent, does not take into account the limited
capacity of different countries and different users to access and make use of the information
contained in databases.268 Similarly, power imbalances may also impact on the way actors can
control their data once it has been publicly shared, or on the way research collaborations are
structured and conducted. Nonetheless, many countries in the Global South, such as Brazil,
South Africa and Malaysia, are both user and provider and are likely to benefit from open
access.
As the above illustrates, an emphasis on the difference between monetary and non-monetary
benefits reveals a false dichotomy, which lies in the fact that non-monetary benefits ultimately
bear economic costs,269 and rely on financial investment in support of capacity building to level
266 This analysis primarily draws upon Morgera 2018 (supra, n 42). 267 CBS/SBSTTA/22/Inf/2, 21. 268 Ibid, 20. Note, however, that the recent CBD study on traceability does find that users of information in the
main databases (INSDC databases) are distributed fairly homogenously over all countries of the world: Rohden
et al 2019 (supra, n 46), 27. 269 Morgera 2018 (supra, n 42), 54.
54
the playing field and realise their full potential. In this regard, a multilateral platform could
focus on overcoming the actual barriers to the realization of equity and fairness in benefit-
sharing and could be based on a dialogue with expected beneficiaries, and on the identification
of integrated responses.
Our proposed multilateral platform is underpinned by a concern for cooperation, as well as
facilitating and brokering scientific cooperation and capacity building. The proposed platform
is an attempt to provide space for dialogue between the multiplicities of actors involved in the
use of DSI, with a view to producing a more effective response to their needs. The proposed
multilateral platform could also facilitate the co-production of ‘solutions’ to DSI, with such co-
produced solutions encompassing the views and needs of the range of communities involved.
In this sense, we foresee that such a platform could allow for inter-institutional, inter-sectoral
and cross-scalar learning.
b) Taking inspiration from the governance of the GLIS: tackling the issue ‘from the
side’
An example of a platform for multilateral cooperation can be found under the ITPGRFA, where
the Global Information System (GLIS) has arguably been devised to address specific barriers
to fair and equitable benefit-sharing in the form of information-sharing not just through the
creation of an online database but the inter-linked development of a multilateral platform for
targeted dialogue and iterative learning. The GLIS thus aims to facilitate fair and equitable
benefit-sharing, by increasing interoperability of systems, by creating a mechanism at the
multilateral level to undertake a series of inter-related tasks that identify and address
shortcomings in bilateral relations, namely: assessing progress and monitoring effectiveness of
enhanced and coordinated information-sharing opportunities; providing institutional support to
broker and oversee scientific cooperation and capacity-building; and identifying any gaps or
issues that could proactively be addressed at international level.270
A positive aspect of the approach is the fact that it tackles the issue of DSI “from the side,
rather than head on”.271 It does not necessarily require agreement on a definition or on DSI’s
inclusion in the scope of the CBD or the Nagoya Protocol. Instead, it provides a combined
approach to strategic implementation of existing obligations and opportunities, notably on
information-sharing, capacity-building, technology transfer, scientific cooperation as forms of
benefit-sharing. It may also explore and systemise opportunities among existing infrastructures
and practices, such as open-access databases and their approaches to attach use conditions to
DSI.272
Another interesting aspect of the GLIS is its reliance on existing information systems273 with a
view to minimising the impact on current infrastructures and procedures, and focusing on
270 Ibid, 58. Article 17 ITPGRFA; GLIS terms of reference. 271 Ibid, 75. 272 Ibid, 74. These include conditions of use notices, click through agreements, open source MTAs, and user
agreements, see also above Option 1 and Laird and Wynberg 2018 (supra, n 5) 36-39. 273 Article 17(1) ITPGRFA.
55
improving interoperability.274 One means it employs to do so,275 is adding a ‘digital object
identifier’ (DOI) to identify a resource. DOIs are designed to coexist with other identifiers that
often aim to serve particular communities and the achievement of specific objectives. The DOIs
are hence intended to be used for “all purposes that are beyond the intended scope of existing
identifiers, such as information sharing across different information systems and different
communities”.276
The GLIS can also provide a helpful example for the creation of a clearing-house mechanism
under the BBNJ instrument.277 As a web-based entry point to information and knowledge,
accessible via < https://ssl.fao.org/glis/>, it is geared both to the strengthening of capacity for
the conservation, management and utilisation of resources and the sharing of benefits, and pays
special attention to the needs of developing countries.278 In doing so, it provides more than an
online repository of information, which is the primary function of the clearing-houses under
the CBD and the Nagoya Protocol. By contrast, the GLIS Programme of Work foresees a
comprehensive, phased approach, covering not only the creation of a web-based platform, but
also aiming to facilitate access to sources and associated information. It also aims to promote
and facilitate interoperability and transparency on rights and obligations of users, to enhance
opportunities for communication and international and multidisciplinary collaboration, to
provide for capacity development and technology transfer for the conservation, management
and use of resources, and to create a mechanism to assess its own progress and monitor
effectiveness.279
It is notable, however, that GLIS is still in the very early stages of development, having mainly
focused on assigning DOIs across organisations,280 and it has not been free from controversy.281
Nonetheless, GLIS provides an important example of conceiving of fair and equitable benefit-
sharing as a governance process that needs inter-institutional, inter-sectoral and cross-scalar
learning. In particular, where GLIS focuses on opportunities and synergies within and between
existing systems, there lies potential for an approach that is developed from direct dialogue
with the scientific community, thus minimising risks of negative and unforeseen impacts on
scientific cooperation and innovation and maximising opportunities for biodiversity
conservation and its contributions to multiple SDGs. Such an approach can contribute to build
trust across the current divides in the DSI debate, by demonstrating sustained commitment to
understanding the actual causes of inequity in a dialogue with affected communities and to co-
274 The Governing Body to the ITPGRFA, 'The Vision and the Programme of Work of the Global Information
System' (2015) IT/GB-6/15/Res 3, Annex I, par 3. 275 See also above option 3. 276 ‘FAQS - the GLIS Portal and Digital Object Identifiers’ http://www.fao.org/plant-treaty/areas-of-
work/global-information-system/faq/en/, accessed October 2019. 277 Morgera 2018 (supra, n 42). 278 Article 13(2) and Article 17 ITPGRFA and ITPGRFA Res 3/2015, Annex 1, par 6; also, Morgera 2018 (supra,
n 42), 76. See on how these articles relate to GIS and the other workings of the multilateral system also: C Ker et
al, ‘Building a Global Information System in Support of the International Treaty on Plant Genetic Resources for
Food and Agriculture’ in Halewood et al (eds), Crop Genetic Resources as a Global Commons: Challenges in
International Governance and Law (Routledge 2013). 279 ITPGRFA Res 3/2015, 4-6 with detailed indicators on how these broader objectives can be achieved. 280 A Alercia et al, Digital Object Identifiers for Food Crops. Descriptors and Guidelines of the Global
Information System (FAO, 2018). 281 Morgera 2018 (supra, n 42), 75 briefly on issues with regard to the DivSeek initiative.
56
develop in a transparent and multilateral setting problems that usually arise, and may remain
hidden or underestimated in their cumulative/systemic impacts, at the bilateral level.
Moreover, inspiration to further sharpen and develop the approach may be drawn from other
international processes, to ascertain how their terms and conditions can support the aims of the
multilateral platform.282 The proposed approach would not be completely novel under the
CBD, with the Sustainable Ocean Initiative (SOI) Global Dialogue with Regional Seas
Organizations and Regional Fisheries Bodies on Accelerating Progress towards the Aichi
Biodiversity Targets able to provide a precedent in this regard. SOI has provided a regular
process to share experiences and identify opportunities to enhance collaboration across sectors
towards internationally agreed goals. It has further allowed for discussions on the need for
specific tools, guidelines or other initiatives with a view to further strengthening opportunities
for collaboration.283
Facilitating opportunities for interactions to promote learning, including through deliberation
by multiple stakeholders,284 is recognized increasingly within international law processes as a
fundamental imperative in situations where a range of actors, and indeed regimes, are
stakeholders to a particular issue. Rather than attempt to resolve issues though, for example, an
emphasis on strict legal hierarchies, deliberative strategies designed to foster learning and
information sharing,285 should be brought to the fore.286 Our proposed multilateral platform
very much fits within such an approach.
c) Facilitating and brokering scientific cooperation and capacity-building
The multilateral platform can provide an opportunity to learn on an ongoing basis how benefit-
sharing approaches to DSI can work or not for scientists, as well as the implications for
biodiversity conservation and sustainable use. On that basis, the platform could proactively
identify opportunities to facilitate and broker, and possibly also oversee and identify gaps or
issues in, an otherwise ad hoc flow of information-sharing, scientific cooperation and capacity-
building activities. A more institutionalized approach could respond to the needs of those
benefitting from information-sharing, provide oversight of the distribution of benefits across
different regions, and contribute to a more systematic encouragement of virtuous circles
through capacity building.
A multilateral platform could also support iterative partnership-building around enhancing the
implementation of CBD and other relevant international instruments such as the proposed
BBNJ instrument. The clearinghouse mechanism already proposed under the current BBNJ
negotiations could, for instance, be envisaged as not just an online repository of information,
282 Note that under Regulation (EU) No 511/2014 (Article 7) research funding is an entry point for monitoring
compliance. 283 ‘Sustainable Ocean Initiative’ (CBD) https://www.cbd.int/soi/, accessed December 2019. 284 M A Young., ‘Fragmentation or interaction: the WTO, fisheries subsidies, and international law’ (2009) 8 (4)
World Trade Review 477, 479. Though see S Oberthür, ‘Interplay Management: Enhancing Environmental Policy
Integration Among International Institutions’ (2009) 9 International Environmental Agreements: Politics, Law
and Economics 371, 382. 285 See generally Young 2009, ibid. 286 See also discussion in Morgera, Switzer and Tsioumani 2018 (supra, n 38).
57
but also a multi-stakeholder process to support a concerted and iterative dialogue to identify
and respond to needs and priorities of beneficiaries, and international institutional support for
setting priorities, brokering scientific cooperation, capacity-building and technology-transfer
opportunities.287 This could also support the identification of users that could become benefit-
sharing trend-setters in their sector (as developers and implementers of best practices in fair
and equitable benefit-sharing), and assess the financial viability of both monetary and non-
monetary benefit-sharing, the challenges in linking monetary benefits to intellectual property
rights as well as the delivery of monetary and non-monetary benefits.288
A principled multilateral approach can also address questions of fairness and equity from a
human rights perspective,289 in order to balance competing rights and interests, avoid
discrimination, and respond to the needs of the vulnerable, while preventing negative
environmental and socio-economic consequences of scientific research. This would be
particularly interesting to align with recent international clarifications of the inter-dependence
of biodiversity and basic human rights (discussed under the hybrid option 7),290 and the need
to interpret and implement the SDGs in accordance with human rights law.291
As discussed in the previous sections, the multilateral platform could also respond to the need
for the international community to understand to the different communities of practices
involved in the use of DSI, thereby more effectively responding to the needs of researchers and
the conservation community through co-development of solutions. The platform would also
assess on an ongoing basis the financial viability and functionality of the system, working
collaboratively with database operators and researchers – both in the Global North and the
Global South, with a view to adapting the system in light of changing scientific practices and
the different economics underpinning particular sectors. The platform could also allow
discussion of any unintended consequences on fairness and equity, including in the use of
various funding and governance options, or the use of copyright-like systems.
d) In conclusion: a multilateral multifunctional platform on DSI
It follows from the above that the adoption of a multilateral approach through a platform for
cooperation (including dialogue, learning, oversight and priority-setting) as recommended by
this study results from a careful combination of:
A clearinghouse mechanism, as a web-based entry point to information and
knowledge;
A forum for dialogue to enhance collaboration across sectors and stakeholders to
contribute to the achievement of the CBD objectives and the SDGs, thereby
o promoting further information sharing (feeding back into the clearinghouse),
deliberation and mutual learning;
287 Morgera 2018 (supra, n 42) 76. 288 E Tsioumani, ‘Beyond Access and Benefit-Sharing: Lessons from the Law and Governance of Agricultural
Biodiversity’ BENELEX Working Paper n 9 (SSRN, 2016), at 28-29. 289 Morgera 2018 (supra, n 42) based on Special Rapporteur in the field of cultural rights (UNHRC), 'The Right
to Enjoy the Benefits of Scientific Progress and Its Applications' (2012) A/HRC/20/26, par 65-69. 290 A/HRC/34/49. 291 A/HRC/RES/37/24 & A/HRC/RES/37/25.
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o providing international institutional support for facilitating and brokering
scientific cooperation opportunities;
o identifying information-sharing, technology-transfer and regulatory and
institutional capacity-building needs and available assistance; and
o building, and assessing the effects of, partnerships, including public-private
partnerships – on the basis of information available on the clearinghouse and
multi-stakeholder dialogue;
A multilateral and multi-stakeholder mechanism to identify and assess obstacles, and
to propose enhancements, to the interoperability of existing systems (arising from the
dialogue with database managers, researchers, users, and feeding into the
clearinghouse); and
A multilateral and multi-stakeholder mechanism to increase transparency about and
assess the distribution of benefits across regions, as well as to discuss good practices
and lessons learnt in ensuring fairness and equity in benefit-sharing (arising from the
dialogue and feeding into the clearinghouse, and incrementally shaping funding and
governance of the platform as a whole).
It is recognised that these and other objectives are unlikely to all be achieved at the same time
and that it will be necessary to set priorities, through a deliberative approach. In this regard,
the multilateral platform could also draw on some of the insights garnered from our analysis of
multilateral funds (option 5 above and the Annex below), notably the emphasis on learning and
building consensus among private as well as public actors through “a shared space to structure
and build solutions to problems.”292 A similar, inclusive and potentially transformative
approach should be taken to the operationalisation of the platform, the allocation of funds, and
continuous reflection on the effectiveness and equity implications of the platform’s workings.
It is noted, however, that more detailed recommendations with regard to the operation,
priorities and governance of the multilateral platform would benefit from further study in
consultations with experts from different disciplines and stakeholders.
292 Klock 2016 (supra, n 189), 175.
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Option 7: Hybrid approach
In this option, which we term the hybrid approach, we combine the multilateral platform for
dialogue, learning, oversight and priority-setting for DSI envisaged in option 6 above, with the
multilateral fund for distribution of benefits set out in option 5. We also revisit a number of our
other options (notably option 4) with a view to proposing improved processes for dealing with
DSI.
A hybrid approach is the most strongly recommended option, because it can combine the
advantages of numerous of the previous options and respond to their individual shortcomings.
It can provide a carefully calibrated approach that can show how it responds to the various
demands expressed by various CBD stakeholders (developed and developing States, the
scientific community, the conservation community). It distinguishes itself from the “shopping
lists” approach, where the international community, unable to find consensus, would identify
a variety of options that are disconnected from each other and risk spreading resources too thin
in trying to pursue them all without clear joined-up thinking. Instead, the hybrid approach
proposed here is based on a reasoned combination of various proposals, structured into a logical
sequence so that the demonstration of how the international community is carefully responding
to the various concerns that have been identified from different sides of the DSI can contribute
(in itself) to pave the way for building trust and political willingness to engage with this
proposal.
a) An overview
The proposed hybrid option combines:
The multilateral platform for dialogue, learning, oversight and priority-setting
(option 6 above). This would focus on:
o Collaboratively identifying of integrated responses to capacity and operational
needs;
o Identifying and co-developing funding mechanisms for monetary benefit
sharing (see below), taking into account the range of needs of relevant actors,
including safeguarding ‘open science’;
o Co-developing criteria for disbursement of funds by a range of stakeholders,
so that benefit-sharing effectively contributes to the holistic realization of the
CBD objectives and relevant SDGs;
o Contributing to governance structures to ensure equity;
o Creating opportunities for learning and iterative design to make sure that the
fund really responds to evolving beneficiaries’ needs and evolving scientific
practices;
o Convening dialogues with stakeholders to stay abreast of the implications of
scientific and technological developments for benefit-sharing and the fund.
A multilateral fund (option 5 above) to ensure financial viability. This could have
multiple approaches, co-developed in phases thanks to the learning approach supported
by the multilateral multifunctional platform (above). This in turn could allow to fit with
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the different economics of different sectors and (sub)sectors, which could draw both
from payments arising from:
o The development of the copyright-like sui generis approach via the creation
of a multilateralised digital domaine public payant to ensure sustainable
financing
o A bond system to ensure financial sustainability in the interim.
The combination of the multilateral multifunctional platform and the multilateral fund could
benefit from the governance approaches of the ITPGRFA GLIS and the GFTAM to integrating
expertise from the bottom up and support the agency of beneficiaries (rather than their passive
enjoyment of benefits) – beneficiaries’ agency is in effect an essential, often overlooked,
element of fairness and equity in benefit-sharing.293 The platform would need to make
specific efforts to ensure the integration of local and indigenous knowledge in decision-making
procedures, as well as scientists from different geographies and capacities, database managers,
experts from different sectors. In this regard, the hybrid approach would build upon some of
the lessons discussed above in respect of the operation of multilateral funds (option 5 above),
with a view to ensuring transparency and genuine partnership-building. It would thereby
include an emphasis on equity in terms of building capacity, as well as the integration of local
expertise. It would also be underpinned by concerns for the promotion of substantive and
continuous learning (across different disciplines necessary to tackle the DSI issues from
different perspectives and a variety of beneficiaries) and take an inclusive and representative
approach to developing guiding principles for both the accrual of funds as well as fund
disbursement.
To those ends, the platform will start with a participatory exercise of peer-learning and peer-
review of the relationship between overall costs and benefits for providers and users, and also
consider concerns for conservation, equity, public health, and open science underpinning the
current approach, as well as of the benefits and costs that are likely to result from moving to a
system of multilateral benefit-sharing. This will be the first step of an iterative process of
participatory evaluation and due diligence that will set a paradigm-shift from the current,
simplistic and predominantly bilateral approach to ABS under the CBD.
b) Opearationalizing the digital domaine public payant as part of the platform
In terms of the establishment of a multilateral fund to accompany the multilateral
multifunctional platform described above, the establishment of a mechanism we term the
‘digital domaine public payant’ (preliminarily discussed above (option 4)), would focus on
generalized benefit-sharing.294
293 Notably in connection with the co-production of knowledge and everyone’s international human right to benefit
from scientific advancements (Universal Declaration of Human Rights Article 27(1); International Covenant on
Economic, Social and Cultural Rights, Article 15): E Morgera, "The Need for an International Legal Concept of
Fair and Equitable Benefit-sharing" (2016) 27:2 European Journal of International Law 353-383, and E Morgera,
"Fair and Equitable Benefit-sharing at the Crossroads of the Human Right to Science and International
Biodiversity Law" (2015) 4 Laws 803-831. 294 Such an approach would also sidestep the fact that certain jurisdictions have denied copyright protection to
hybrid gene sequences - e.g. Delhi High Court in Emergent Genetics India Pvt. Ltd. v. Shailendra Shivam and
Ors (as noted in Welch 2017 (supra, n 18), 23). See also Ruiz Muller 2013 (supra n 154).
61
The operationalisation of the digital domaine public payant would require a determination to
be made in respect of three issues: how and when would payment be made: what sort of
mechanism would payment be made to; and how would funds be disbursed. We deal with each
in turn.
i) How and when would payment be made?
Payment for the digital domaine public payant could be constructed in (at least three) potential
ways. The first would involve payment upon access to DSI, the second would involve payment
upon use, while the third would be based upon payment for use but operationalised through the
blockchain-associated feature of smart contracts.
Payment upon access to DSI would involve constructing a regime somewhat contrary to the
domaine public payant within the cultural sector – whereby payment is generally upon use. In
the case of those accessing DSI, instead, paying a fixed but potentially tiered fee upon access
to DSI through publicly accessible databases would allow to take into account different
categories of users. Payment upon access would ameliorate the need for track and tracing and
address some of the issues of valuation of monetary benefits outlined above. Payments would
be made into a central, multilateral fund and distributed in accordance with the objectives of
the CBD (see also option 5 above and option 2 above).
In order to operationalise a regime of payment upon access, further study and consultation with
all relevant stakeholders including database holders, scientists and conservationists, indigenous
people and local communities would be required, to better understand the impacts of specific
options in practice. Whilst more detailed recommendations are, therefore, beyond the scope of
this study, it is our opinion that potential operationalization of the digital domaine public
payant through the application of a fee applied to public database access, as suggested above,
would only be feasible if encompassed as part of the hybrid approach outlined here. In essence,
the creation of a multilateral platform for dialogue, learning, oversight and priority-setting
envisaged as part of what we term the hybrid option would be underpinned by the principle of
collaboration with, for example, database operators and researchers, with significant
representation of those from the Global South. Accordingly, both normatively, and
operationally, the digital domaine public payant, if instituted through payment upon access to
DSI, is to be differentiated from a stand-alone charge for database access that does not come
with an institutional set-up that addresses, among other things, the need to safeguard the norm
of open science and equity. The distinction here stems from the fact that a stand-alone charge
for database access without the type of engaged conversations with all potential stakeholders
we foresee under the hybrid approach runs the risk of not taking the norm of open science into
account fully in its implementation. Such dialogue would by extension be required in order to
overcome some of the practical issues previously discussed (option 5) with the
operationalisation of a subscription or access fee.
An alternative to payment upon access would be payment upon use. While difficulties abound
with the operationalisation of a system of payment upon use due to the issues with tracking and
tracing discussed previously, inspiration could be drawn from the Pandemic Influenza
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Preparedness Framework’s Partnership contribution which, as noted above (option 5), is paid
by manufacturers of influenza vaccine, as well as diagnostic and pharmaceutical manufacturers
who use the WHO Global Influenza Surveillance and Response System (GISRS). This is
operationalised via a questionnaire sent by the WHO every year to potential contributors, with
the funds then allocated to capacity building, pandemic response and maintenance of the PIP
Framework.295 A similar system could be devised for companies making use of, for example,
the INSDC, with payment, set at a fixed percentage of turnover or gross profit, made
compulsory – as opposed to voluntary - for certain companies using DSI and with a turnover
above a certain threshold. There would hence be no need to track and trace benefits to use,
since any payment would be a fixed fee tied to use of DSI in a broader sense.
The compulsory nature of the system of payment upon use explored above would overcome
the problems with a voluntary scheme discussed above (option 5) and targeting payment at
companies with a turnover above a certain amount would avoid equity issues associated with
payment upon access which could potentially have a detrimental impact upon researchers and
companies from the Global South. Payment upon use could potentially require close
cooperation with databases to ensure that an accurate list of users is compiled although other
mechanisms could potentially be devised here. The operationalisation of a system for payment
upon use would also require close cooperation with Parties in which each applicable company
is domiciled as the compulsory nature of any such fee means that it would likely require to be
imposed at national level before being transferred into a multilateral fund to be disbursed in
accordance with the objectives of the CBD. Accordingly, as with payment upon access,
operationalisation of a system based upon use would require to be situated as part of a
multilateral platform (discussed in option 6) for dialogue, learning, oversight and priority-
setting underpinned by the principle of collaboration with, for example, all interested and
affected stakeholders. Such a platform could potentially also arrive at a process for compulsory
payment direct to a multilateral fund, as opposed to being imposed domestically before being
disbursed to a multilateral fund. This would have the positive effect of not interfering with
already existing domestic schemes such as Brazil’s 1% levy upon use (option 5 above), though
it could result in a double burden of payment for certain companies. This would require careful
consideration, as would the fact that any such charge, as noted above, if implemented nationally
(depending upon what is agreed), could cause concrete problems for implementation and result
in patchy compliance across jurisdictions. Similar issues with the implementation of a
biodiversity tax were also raised above (option 5).
It should be noted that one significant disadvantage of either system is of course the likely non-
cooperation of the United States in any such system, though this is an issue which underpins
any attempt to ‘resolve’ the issue of DSI multilaterally. However, the phased, iterative
approach which underpins the hybrid option discussed here with a multilateral fund being tied
295 ‘Influenza – PIP Partnership Contribution’ (WHO, n.d.)
https://www.who.int/influenza/pip/partnership_contribution/en/, accessed December 2019. See also Rourke et al.
(supra, n 184).
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to a learning platform may be of interest to a range of actors in the US, thereby potentially
helping to bring about a transformation in worldviews (see discussion below at (d)).
Of course, some might suggest that an alternative to, or a complement to the above, could be
operationalisation of the digital domaine public payant through the blockchain-associated
feature of smart contracts (option 3 above). Nonetheless, the disadvantages of the use of
blockchain need to be reiterated here (energy footprint, requirement for users to have sufficient
computer power to participate, the potential incompatibility with existing databases such as
INDSC, and the issue that data can often still be accessed outside of the blockchain). Rather
than including blockchain in a hybrid approach, we see merit in instead using the multilateral
platform discussed above (option 6) to identify in a collaborative manner with database
operators and researchers in the Global North and the Global South ways to improve the
functioning and inter-operability of existing structures. This could, for example, involve greater
operationalisation and use of clickwrap or clickthrough agreements that are sparsely used by
some databases. Accordingly, regardless of how the digital domaine public payant is instituted,
the multilateral platform discussed above (option 6) is a vital element to its operationalisation
going forward.
It is to be noted that there may well be other mechanisms to ensure payment under the digitial
domaine public payant with the multilateral platform discussed above being central to the
process of deciding upon how best such payment can be secured. The platform would be based
on a process of dialogue to ensure that a scheme designed to promote equity via monetary
benefit-sharing does not result in inequity through an adverse impact on, for example,
researchers from the Global South. In addition, the choice of the appropriate method would be
based on learning across sectors such as those from the cultural heritage arena to really get a
sense of the various options available and their implications for the CBD objectives. As
discussed previously, the multilateral platform could draw on some of the insights garnered
from our analysis of multilateral funds (option 5 above and the Annex below), including the
emphasis on the creation of opportunities for consensus building, as well as offering both
private as well as public actors “a shared space to structure and build solutions to problems.”296
The relationship between the digital domaine public payant and the platform is thus crucial.
The platform ensures that all potential impacts of any payment upon open science are
considered and dealt with before implementation of such a charge. The platform is therefore
vital as a practical and structured mechanism to ensure that any potential negative impacts of
the payment on open science are avoided by engaging in direct dialogue with scientists. In
essence, the platform will help to calibrate any potential implementation of the digital domaine
public payant in response to the actual needs of scientists by including them as stakeholders in
the conversations around responding to DSI. The platform would also support and document
learning about the use and impacts of digital domaine public payant so that the latter can be
gradually improved in light of experience.
Finally, it should be underscored that the digital domaine public payant is only one potential
way to secure funding for the hybrid approach. To that end, dialogue under the platform can
296 Klock 2016 (supra, n 189), 175.
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tease out more clearly the risks and benefits of different options for accruing monetary benefits,
though, clearly, more studies would be required here. Without it (or a similar mechanism to
generate monetary benefits), significant risks exist to equity, legal certainty and innovation if,
for example, more restrictive national regimes on DSI are implemented.
It also needs to be noted that the iterative, horizontal approach to mutual learning envisaged
under the platform could well reject the feasibility of the digital domaine public payant at the
current time, in which case the other options (including innovative financing mechanisms
discussed at option 5) would come into play. But turning to other forms of financing wouldn’t
ameliorate the need for a multilateral platform for dialogue envisaged here. It is also possible
that the digital domaine public payant (or whatever scheme is arrived at, in terms of financing
the envisaged multilateral fund) could be a temporary measure, if a trust fund mechanism was
established which could eventually be self-sustaining if properly funded in the first instance.
ii) What sort of mechanism would payment be made to? How it would be disbursed?
Our clear preference here is for payment to be made to a multilateral fund (option 5) and
disbursed in accordance with the objectives of the CBD and the contributions to multiple SDGs.
There would be no attempt to track and trace with the focus of disbursement upon supporting
projects which serve the objectives of the CBD. This would accordingly extend the ABS
principles underpinning the CBD in respect of DSI to a collective multilateral fund (option 5
above) entrusted with management of monetary benefit sharing.297 This would not involve
countries renouncing sovereignty, but could in some ways reaffirm it,298 while at the same time
moving away from the commercial, bilateral logic of the CBD by recognising the difficulties
associated with the operation of the current ABS approach to DSI.299 In essence, payment to
and disbursement from a multilateral fund, taking into account the lessons from our analysis in
option 5 would resolve the issues of valuation previously identified as so problematic (options
1 to 3) in the context of DSI and help to ensure achievement of the objectives of the CBD.
c) The centrality of the CBD
Finally, we would recommend that the hybrid approach be developed under the CBD
(developing further our discussion under option 5 above), to rely on the existing structure under
the Treaty. Notably, it is the CBD that provides the objectives and international obligations to
guide the exercise and also enjoys – almost – universal membership. It is also flexible enough
to adapt to the demands of other international regimes. Compared to other international treaties,
the CBD is already remarkably open to inputs and engagement with a variety of stakeholders
and the hybrid proposal would mark a step-change in that connection to ensure that the treaty
remains effective and adapted to the evolution of conservation science. While the Nagoya
Protocol could offer an avenue under its Article 10, there are clear disadvantages to this option
297 For discussion in the context of the arts, see Dietz 1990 (supra, n 155), 20. For discussion within the context
of traditional knowledge, see Ruiz Muller 2013 (supra, n 154). 298 In a similar vein, Ruiz Muller 2010 (supra, n 17) 12. 299 See general discussion in ibid, 10. See also Ruiz Muller 2013 (supra, n 154) for discussion in the context of
TK.
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due to, among other things, the limited membership of the Protocol. The CBD already contains
a series of broad obligations that can underpin international cooperation on DSI, notably the
combined reading of the obligations under:
Article 12(c) on research and training for “Parties, taking into account the special
needs of developing countries [to] in keeping with the provisions of Articles 16, 18
and 20, promote and cooperate in the use of scientific advances in biological diversity
research in developing methods for conservation and sustainable use of biological
resources.”; and
Article 17 on the exchange of information, whereby Parties “shall facilitate the
exchange of information, from all publicly available sources, relevant to the
conservation and sustainable use of biological diversity, taking into account the special
needs of developing countries” and “such exchange of information shall include
exchange of results of technical, scientific and socio-economic research, as well as
information on training and surveying programmes, specialized knowledge,
indigenous and traditional knowledge as such and in combination with the
technologies.”
Articles 16 on technology transfer, 18 on technical and scientific cooperation and 20 on
financing are also relevant to the implementation of the CBD Article 15 on ABS, notably
Article 15(7) whereby each Party “shall take legislative, administrative or policy
measures…with the aim of sharing in a fair and equitable way the results of research and
development and the benefits arising from the commercial and other utilization of genetic
resources with the Party providing such resources”, as well as Article 15(6) whereby each Party
“shall endeavour to develop and carry out scientific research based on genetic resources
provided by other Contracting Parties with the full participation of, and where possible in, such
Contracting Parties.”
These provisions can also contribute to the implementation of the Nagoya Protocol, the
preamble to which underscores, that Parties “recogniz[e] the important contribution to
sustainable development made by technology transfer and cooperation to build research and
innovation capacities for adding value to genetic resources in developing countries, in
accordance with Articles 16 and 19 of the Convention.”
Two key questions would, however, remain to be addressed: the relevance of a hybrid approach
for databases in the US and the opportunity for the BBNJ process to link a new international
legally binding instrument to an external platform. It can be hypothesized that if the hybrid
approach creates a useful and fruitful dynamic of cooperation with database operators and
scientists, it will be of interest to US database operators and scientists, as well as of BBNJ-
related database operators and scientists to participate in its process and remain connected with
the rest of the global scientific community. In this regard, and as discussed above (option 5
and 6), offering such a shared space to different actors with differing worldviews, may allow
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for normative transformation300 and allow for new responses to be garnered to deal with
common issues.
Normative transformation in this domain are not a pipe dream and indeed, we can see an
example of such transformational change in the creation of the Global Initiative on Sharing All
Influenza Data (GISAID). This Initiative is the result of much by way of international effort to
create, “consensus on a novel (flu virus) sharing mechanism enabling public and animal health
authorities to continue their surveillance work.”301 The effort to conclude GISAID involved
considerable engagement with a range of actors such as data providers and researchers, as well
as requiring mediation of diplomatic tensions arising from the sharing of such data.302
More fundamentally, even in the absence of the type of normative transformation, research on
regime interactions has underlined the importance of what may be termed, enabling interplay
management, which focuses upon sharing knowledge, communication and understanding, to
promote learning between regimes.303 In that regard, “a more systematic approach to make
information and knowledge about other relevant institutions and the potential for synergy with
them available holds the promise”304 of enhanced and mutually supportive interactions between
regimes.305 Providing an opportunity for the BBNJ process for a new international legally
binding instrument to connect to the platform we envisage here therefore has its own
advantages in terms of promoting synergies between these already overlapping regimes and
thereby promoting more effective interactions and mutual learning. This would also be in line
with the emerging general international law principle of mutual supportiveness.306
Broad acceptance of the need to prioritize these public policy objectives can be justified on the
basis of the alarming findings on the unprecedented rate of biodiversity loss and its wide-
ranging implications for human well-being, as evidenced in the 2019 Global Assessment of
Biodiversity and Ecosystems Services. The urgency of the global biodiversity crisis also needs
to be fully appreciated from an international human rights law perspective: as authoritatively
clarified by the UN Special Rapporteur on the Human Rights and the Environment in 2017, the
full enjoyment of everyone’s human rights to life, health, food and water depend on healthy
ecosystems and their benefits to people, so the protection and realisation of basic human rights
depend on successful efforts to prevent biodiversity loss.
300 Chon 2013 (supra, n 250) 283. 301 S Elbe and G Buckland-Merrett, ‘Data, disease and diplomacy: GISAID's innovative contribution to global
health’ (2017) 1 Global Challenges 33. 302 Ibid. 303 Oberthür 2009 (supra n 284) 387. 304 Ibid, 383. 305 Morgera, Switzer and Tsioumani 2018 (supra, n 38). See also Switzer, Morgera, Burci and Tsioumani,
‘Biodiversity, pathogen sharing and international law’ In S. Negri (ed.), Environmental Health in International
and EU Law: Current Challenges and Legal Responses (pp. 253-271). London. 306 See generally R Pavoni, 'Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed
for the ‘WTO-and-Competing-Regimes’ Debate?' (2010) 21 European Journal of International Law 649.
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Conclusion
The issue of DSI has been a topic of discussion under the CBD since 2016, and it is expected
to be a critical topic at the CBD COP in 2020. Progress at international level has, however,
been very slow due to technical and political complexities. This study investigated if a sound
and practical solution can be found and presented through EU leadership, to bridge and balance
the interests of developing and developed countries, and contribute to the achievement of the
CBD’s three objectives: biodiversity conservation, sustainable use of biological resources, and
fair and equitable benefit-sharing.
This study presented 7 options to address the matter of DSI:
1. DSI is not covered by the CBD or the Nagoya Protocol;
2. DSI is covered by the CBD and the Nagoya Protocol and no additional measures are
taken;
3. Existing CBD/Nagoya Protocol provisions are complemented by the implementation
of a new track-and-trace system;
4. A copyright-inspired sui generis system is put in place;
5. A multilateral DSI fund is put in place;
6. A broader, principled approach to benefit-sharing is taken through a multilateral,
multifunctional platform, or;
7. A hybrid approach is taken that can clearly respond to the various demands expressed
by various CBD stakeholders, which (in itself) can help pave the way for building trust
and political willingness.
It was found that exclusion of DSI from the scope of the CBD was not a recommended option,
as it was interpreted to be contrary to the principles of international law of effectiveness and
good faith and could undermine legal certainty (option 1). However, it was recognised that
application of existing ABS rules without additional measures is likely to cause adverse effects,
due to problems of valuation and mismatch with current scientific practices (option 2). It was
also found that implementation of a new or improved track-and-trace system would be
insufficient to address these issues, as well as tracking and monitoring the use of DSI (option
3). An innovative approach has therefore been suggested.
A hybrid approach (option 7), combining positive and complementary elements of options 4 –
6 is held to be the preferred option in this regard. At its heart is a multilateral platform for
dialogue, learning, oversight and priority-setting (option 6). A more principled approach to
benefit-sharing for DSI, which tackles the issue ‘from the side’ and focuses on beneficiaries’
agency as a cornerstone for fairness and equity in benefit-sharing, as well as the need for
continuous dialogue and learning across disciplines and sectors, allows for a focus on desirable
outcomes rather than technical obstacles to progress. It also seeks to overcome the false
dichotomy between monetary and non-monetary benefits, by focusing on the need to break
barriers to realization of equity and fairness in benefit-sharing, and by basing itself on dialogue
between beneficiaries. This, however, also raises the matter of financial viability (option 5),
with the preferred option being a multilateral fund. Lessons can be learnt in this regard from
the decision-making processes and governance structures that underpin existing global or
68
multilateral funds, notably those that foresee in effective, participatory processes for the
delivery of equity. Moreover, innovative approaches should be explored, notably, a derivative
of copyright-like sui generis approach which we term the digital domaine public payant would
both recognise that DSI should not be treated as a freely exploitable resource, and guarantee a
sustainable and equitable source of funding for the achievement of the platform’s activities in
support of the realization of all the CBD objectives and their contributions to multiple SDGs
and the protection of basic human rights that are dependent on biodiversity.
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Annex Table: Overview of Six Existing Multilateral or Global Funding Mechanisms
Fund Objectives Financing Primary types of funding Procedures
Global
Environment
Facility (GEF)
(World Bank)
To meet the agreed
incremental cost of activities
that generate global
environmental benefits
(GEBs) under five different
focal areas: biodiversity,
climate change mitigation,
land degradation,
international waters,
chemicals and waste.
Contributions
from (39)
donor
countries.
Funding for enabling activities to
prepare a plan or programme for
the purpose of fulfilling
commitments under a Convention.
Financing for the incremental
costs of projects, associated with
transforming a project with
national benefits into one with
global environmental benefits.
Proposals are submitted through
Operational Focal Points (OFPs)
or by country governments.
Proposals are submitted to a GEF
agency or to the GEF secretariat,
which provides provisional
approval of individual projects.
Submitted to The Council, which
adopts the overall programme of
work by consensus. The Council
has 32 members (14 from
developed countries; 16 from
developing countries; 2 from
economies in transitions).
The work is supported by the
Scientific and Technical Advisory
Panel (STAP).
ITPGRFA’s
Benefit-Sharing
Fund (BSF)
(FAO)
Objectives of the ITPGRFA,
with priorities following from
the Global Plan of Action:
information exchange,
technology transfer and
Nett. 0.77%
contribution of
sales of
patented
product OR
Primarily project-based grants
which contribute to the
achievement of the objectives of
the ITPGRFA.
Contracting Parties or any legal or
natural person (e.g. including gene
banks, research institutions,
farmers and farmers’
organisations; regional and
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capacity-building; managing
and conserving plant genetic
resources on farm; sustainable
use of plant genetic resources.
0.5% of gross
sales.
And voluntary
contributions.
Also funding for the development
and implementation of Strategic
Action Plans.
international organisations) can
submit a proposal.
An independent panel of experts
screens the proposals against
eligibility criteria.
A decision on the application is
made by the Bureau, with 7
members (1 each from Africa,
Asia, Europe, GRULAC, Near
East, North America, South West
Pacific).
Green Climate
Fund (GCF)
(UNFCCC)
To make a significant and
ambitious contribution to the
global efforts towards
attaining the goals set by the
international community to
combat climate change, taking
into account the urgent and
immediate needs of
developing countries that are
particularly vulnerable.
Contributions
from donor
countries.
Project- and programme-based
funding in accordance with
climate change strategies and
plans.
Also loans, grants, equity and
guarantee under private sector
window.
Other support includes the
Readiness and Preparatory
Support Programme, which seeks
to enhance the capacities of NDAs
and direct access entities, through
grants or technical assistance.
Private sector (41%) and public
sector (59%) can submit proposals
through GCF Accredited Entities
(including sub-national, national
or regional organisations,
international entities, and private
sector entities).
Funding decisions are made by
consensus by the Governing
Board, made up of 24 members: 3
from Asia-Pacific States; 3 from
the African States; 3 from Latin
American and the Caribbean; 1
from SIDS; 1 from LDCs; 1 from
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Additionally, GCF has an
extensive capacity-building
programme, focusing on:
institutional capacity-building;
enhancement/creation of an
enabling environment; capacity-
building for the implementation of
adaptation measures;
development of research and
systematic observation, including
meteorological, hydrological and
climatological services;
education, training and awareness
raising.
the developing country Parties not
included in the above; 1 to rotate
between developing countries not
included in the above.
GCF has also dedicated resources
to further development of direct
access
Activities between developing
countries and GEF are streamlined
through National Designated
Authorities (NDAs) who also
nominate entities for
accreditation.
Global Agriculture
and Food Security
Program (GAFSP)
(World Bank)
Five objectives: raising
agricultural productivity;
linking farmers to markets;
reducing risk and
vulnerability; improving non-
farm rural livelihoods;
technical assistance,
institution-building and
capacity development.
Contributions
from donor
countries (6
main donors).
Investment grants for countries
and regional organisations to fill
financial gaps of comprehensive
national agriculture and food
security strategies and investment
plans.
Technical assistance financing for
regional organisations in
partnership with supervising
entities with technical expertise.
Loans, credit guarantees, and
Proposals are submitted through a
public sector window by countries
or regional organisations, or a
private sector window by private
firms or financial institutions.
Proposals are reviewed by the
GAFSP Technical Advisory
Committee. They are approved by
the GAFSP Steering Committee,
with members from the 3 original
donor countries (Canada, Spain,
US) and other donor (including
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equity capital for private sector
firms and financial institutions.
private sector), and at least an
equal number from recipient
countries from Africa and other
regions in the world (currently 16
voting members total).
Processes are coordinated by
GAFSP Coordination Unit. World
Bank holds in trust and
administers funds.
The Global Fund to
Fight AIDS,
Tuberculosis and
Malaria (The
Global Fund)
(Independent)
To attract, leverage and invest
additional resources to end the
epidemics of HIV,
tuberculosis and malaria and
to support attainment of the
Sustainable Development
Goals.
Donor-based:
* 93% from
donor
countries;
* 7% from
private sector,
foundations
and innovative
financing
initiatives.
(RED) label
initiative to
generate
private
funding,
Funding for programme
continuation; tailored funding for
focused portfolios; tailored
funding for national strategic
plans; tailored funding for
transition; a full review of the
previous funding programme.
Funding is organised through a
modular framework with different
‘intervention packages’ and
indicators of success. These
include both programmatic
intervention, capacity-building
and more specific project-based
approaches.
Country Coordination
Mechanisms (CCMs) submit
funding application on behalf of a
country. CMMs include
representatives from all sectors:
multilateral or bilateral agencies,
NGOs, academic institutions,
faith-based organisations, private
sector and people living with the
diseases.
Proposals are first reviewed by a
Technical Review Panel (TRP)
formed by independent, technical
experts, and then by a Grants
Approval Committee with
representatives from the Fund’s
senior management and technical,
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bilateral and multilateral partners.
Funding proposals are approved
by a Board of 20 members, with
equal representation of
implementing and donor countries
and including representatives
from ‘communities’, NGOs and
the private sector.
Gavi – the Vaccine
Alliance
To save children's lives and
protect people's health by
increasing equitable use of
vaccines in lower income
countries, through vaccine and
health system strengthening
programmes.
* Direct
contributions
through grants
and agreements
from donor
governments,
foundations
corporations
and
organisations
(77%)
* Innovative
finance (23%):
The
International
Finance
Facility
(market
financing),
Funding for health system
strengthening programmes (full
portfolio planning) and for
vaccine and/or CCEOP support
(partial portfolio planning).
Proposals are submitted through a
national coordination forum
(Inter-agency Coordinating
Committee, Health Sector
Coordinating Committee or
equivalent body), which include
members from different ministries
and other key immunisation
stakeholders (recommended:
academics, technical advisory
group, national regulatory
authority, private sector
representatives).
Proposals are reviewed by an
Independent Review Committee,
with independent experts in public
health, epidemiology, supply
chain, developmental finance and
74
Gavi Matching
Fund, Loan
Buydown
economics.
Gavi’s Chief Executive Officer
decides on the final grant
application.
The Gavi Board, compromised of
28 members, including
independent individuals,
organisations incl. World Bank,
WHO, UNICEF, developing and
donor countries, and vaccine
industry, is responsible for
strategic direction and
policymaking